the top 10 risk management questions from physicians mike ball · 2017-04-18 · have called to my...

The Top 10Risk Management Questions

from Physicians

Mike Ball12th Annual Winter Symposium 2017

Santé Health Foundation and Community Medical Centers

Scottsdale, Arizona

© 2017 by McCormick,

Barstow, Sheppard, Wayte &

Carruth LLP

© 2017 by McCormick, Barstow, Sheppard, Wayte & Carruth LLP

From: Heathcliff Huxtable<[email protected]> Sent: Friday August 12, 2016 6:18 AM To: Mike Ball <[email protected]> Subject: Stress Management

Mike, not sure if you have heard, but unfortunately

I am involved in a bit of litigation here in LA. Do

you have any sage advice for me about

overcoming the stress of litigation?

Cliff

Heathcliff Huxtable, M.D.

12629 Riverside Drive

North Hollywood, CA 91607

[email protected]

(818) 279-1823

You Are Not AloneIn California in the 21st Century, almost no physicians

will go through their career without suffering a

malpractice claim.

Do not be your own worst enemy!

Often in my defense of a medical malpractice case,

the person who turns out to have been the most critical

person of my client is not the opposing expert, but is

… my client … at the very beginning of the case.

That can be a very vulnerable, emotional time, unlike

anything you have experienced before.


Tips to Help Deal with the

Stress of a Malpractice Claim

Take care of yourself – eat healthy, get rest, and

stay active

Be prepared – it is your case, so work hard and

commit to the case the priority it is due

Give yourself some credit – the lawyers, judge and

jurors probably did not go to medical school

Put things in perspective

Make use of all the resources available to you



From: Benjamin Pierce Sent: 8/1/2016 9:30 AM To: Mike Ball Subject: Referral re Disruptive Behavior

Mr. Ball

I enjoyed your presentation in Napa at the 2016 California Society

for Healthcare Risk Management Annual Conference. I am

reaching out to you for a referral to a program to help me address some negative aspects of my behavior that my peers

have called to my attention. I have been under a lot of stress,

and apparently I have recently been taking it out on others

around me. I believe I heard you talk about a program like this at Vanderbilt. Any info would be greatly appreciated.

Capt. Benjamin Franklin “Hawkeye” Pierce, MD

Disrespectful, abusive or disruptive behavior can

and does have a negative effect on patient care.

Therefore, it is important to identify, discourage

and if necessary take action against egregious

behaviors.


9.4.4 Physicians with Disruptive Behavior

“The importance of respect among all health professionals as a means

of ensuring good patient care is foundational to ethics. Physicians

have a responsibility to address situations in which individual

physicians behave disruptively, that is, speak or act in ways that may

negatively affect patient care, including conduct that interferes with the

individual's ability to work with other members of the health care team,

or for others to work with the physician.

Disruptive behavior is different from criticism offered in good faith with

the aim of improving patient care and from collective action on the part

of physicians. Physicians must not submit false or malicious reports of

disruptive behavior.”

AMA Principles of Medical Ethics: I, II, VIII


The American College of Obstetricians and Gynecologists

in a 2011 Committee Opinion provided the following

examples of “disruptive behavior”:

Profane or disrespectful language

Yelling, berating or insulting others

Throwing instruments, charts or other objects

Bullying, demeaning, or intimidating conversations

Criticizing other health care providers or

organizations in front of patients or other staff

Sexual comments or innuendo

Insidious intimidation, such as sarcasm, nonverbal

gestures, or passive-aggressive behavior


Where disrespectful, abusive or disruptive behavior is allowed to continue in

the workplace, inevitably team members will avoid the disruptor. Or, they may

be afraid to ask questions or make a positive suggestions about patient care.

Gerald B. Hickson, M.D., from the Center for Patient and Professional

Advocacy at Vanderbilt University Medical Center emphasizes in his definition

of disruptive behavior passive and aggressive behaviors, and "behavior that

creates stressful environments and interferes with others’ effective functioning”.

Dr. Hickson lectures and provides training to medical providers about dealing

with disruptive behavior in a progressive fashion.

Most medical providers are indeed professional and respectful. Of the small

minority that do exhibit disruptive behaviors, most of them are receptive to

efforts to educate them about the negative effects on patient care of their

actions, and most will also make efforts to modify their behavior.



From: Meredith Grey<[email protected]>

Sent: Sunday, August 7, 2016 11:23 PM

To: Mike Ball <[email protected]>

Subject: Hi!

Mike,

Sorry to hear that the McCormick Barstow office up here in

Seattle closed. It was great seeing you and Kim, and I am

excited that Michael is heading up this way to Eugene for

college!

I was hoping you could send me some more information

about the conversation we had concerning a patient’s

right to refuse treatment.

Best,

Meredith

Meredith Gray M.D.

Chief of General Surgery

Grey Sloan Memorial Hospital

1560 N 115th Street

Seattle, WA 98133

(206) 366-4466

[email protected]

Right to Refuse Treatment

A competent patient has the right to refuse

any and all forms of medical treatment, even

life-sustaining measures.

The refusal can be based on any moral,

religious or other subjective reason.


“Informed Refusal”A patient's refusal to accept recommended medical treatment should be

informed.

The California Supreme Court has held that physicians have an obligation to

obtain “informed refusal” when a patient chooses to forgo a recommended medical

procedure:

If a patient indicates that he or she is going to decline a risk-free test or treatment,

then the doctor has the additional duty of advising of all material risks of which a

reasonable person would want to be informed before deciding not to undergo the

procedure … If the recommended test or treatment is itself risky, the physician

should always explain the potential consequences of declining to follow the

recommended course of action. A physician should document the patient's

"informed refusal" in the patient's medical record.

Truman v. Thomas (1980) 27 Cal.3d 285



One California appellate court has also applied the doctrine of

“informed refusal” to the situation where a physician makes a

recommendation that a patient see a specialist. In Moore v.

Preventive Medicine Medical Group (1986) 178 Cal.App.3d 728,

a physician was held liable where he did not inform the patient

of the consequences of failing to see the specialist that he was

recommending.

Note that a parent does not have an absolute right to deny life-

sustaining treatment to his/her child. If a minor is in need of life

sustaining treatment and a parent refuses consent, a physician

may seek a court order authorizing the necessary treatment.


From: Gregory House <[email protected]>

Sent: Thursday, August 11, 2016 9:38 PM


Subject: Help!

Michael, I am surrounded by incompetence and need somebody of your ilk to talk

me off the ledge! Foreman and the rest are dismissing my methods as overly heuristic. Is there no respect in medicine for intuitive judgment anymore? And my

patients all lie. I actually miss Cuddy. I am not going back to Mayfield, so don’t even start with that.

I am about ready to pack up and take that offer from Community Regional Medical

Center. All I need is a whiteboard, and a recommendation for a good pain management specialist. But I won’t do walk-in clinic duty ...

House

Gregory House, M.D. Princeton-Plainsboro Teaching Hospital

1 Plainsboro Road Plainsboro Township, New Jersey 08536 (609) 853-1692

Listen to your instincts, but don't

wait for epiphanies

In an age of ever-expanding technology and new and better tests, there

definitely is still a place for intuitive judgment.

It remains critical, however, for diagnosticians to weigh medical

evidence. We have all heard the aphorism “When you hear hoof beats,

think of horses not zebras”. Arriving at a logical, commonplace

diagnosis is indeed statistically more likely than an exotic one.

The differential diagnosis method should and does still at times keep

“zebra” type diagnoses alive, until evidence conclusively rules them

out.



“In making the diagnosis of the cause of illness in an

individual case, calculations of probability have no

meaning. The pertinent question is whether the disease is

present or not. Whether it is rare or common does not

change the odds in a single patient … If the diagnosis can

be made on the basis of the specific criteria, then these

criteria are either fulfilled or not fulfilled.”

--- A. McGehee Harvey, James Bordley II,

Jeremiah Barondess

Listening to a patient often is the most important diagnostic tool

TDC Recommendations for Avoiding Reliance on Too Much Intuition:

Don't stop at the first diagnosis

Be prepared to alter your course of treatment

Consider family history when making a diagnosis

Engage your whole extended team

Know the patient's history and review the chart

Keep an open mind when there is conflicting information

Always have a backup plan



From: Julius Hibbert<[email protected] >

Sent: Fri 7/29/2016 10:20 AM


Subject: Laboratory and Diagnostic Tests

Mike, I am doing more and more tests all the time, plus working with

specialists who order tests as well. For outside tests, is it OK to

assume that they will get me the results, and who is responsible for

communicating with the patient?

Don’t worry about charging me for the advice. I just did a quadruple

bypass on Homer for $40,000. Burns is so cheap, but somehow the

health insurance for the workers at the Springfield Nuclear Power

Plant is “da bomb”!

See you at the next Mensa get-together …

Julius

Julius M. Hibbert, M.D. 710 Atlantic Avenue

Springfield, CA 95501

(707) 837-9812

Establish a Reliable System

to Track All Test Results As published in a 2015 article by Dana Faber on

The Doctor's Company’s website, findings from 221

patient safety assessments performed from 2014

through early 2015 revealed 70 consequential test-

tracking findings. The most common finding was

that practices depended on passively waiting for test

results or for the patient to return before checking

the result.

Inadequate clinical laboratory and diagnostic test

tracking was a top factor leading to patient injuries.


TDC appropriately recommends establishing a

test-tracking process, which flows as follows:

Test ordered

Test performed (inside or outside the facility)

Results tracked

Test results sent back

Results reviewed by the provider

Test results documented as reviewed, and filed

Patient notified of the test results

Plan made, and patient monitored through follow-up


Recommendations --

Best Practices

Track all outstanding tests

Make sure the testing facility reports critical test

results immediately by phone, and in writing

Do not wait for the patient's next appointment

Communicate all test results to the patient

Document in the medical record unsuccessful

attempts to communicate with the patient


Whose Job Is It?

As a general rule, the physician who orders or schedules a test should

assume that he/she is primarily responsible for all follow through. This

includes making sure that results are received, reviewed, discussed with the

patient, and documented in the medical record.

While most physicians believe that the standard of care is that the provider

ordering the test is the one responsible for following up and clearly

communicating information about test results to the partner provider (and to

the patient when indicated), the reality is that a PCP is always exposed

when a test inside or outside their facility is not properly followed up on.

When a specialist recommends tests for a managed care patient, the

ordering PCP should assume he/she is the person responsible for all follow-

up and for clearly communicating test orders and test results to the partner

provider and to the patient.



From: Douglas Ross <[email protected]>Sent: Tue 8/9/2016 8:15 AMTo: Mike Ball <[email protected]>Subject: Terminating Relationships

Hey Mike

I need advice on terminating relationships.

Don’t laugh! I’m serious. Terminating

patient relationships. Can you please tell

your old Chicago pal how to drop a patient

without getting in trouble? Go Cubs!

Doug

Douglas Ross, M.D.224 North Rodeo Drive

Beverly Hills, CA 90210

(310) 227-6545

mailto:[email protected]


Terminating Patient RelationshipsThe physician/patient relationship can be terminated

essentially in one of two ways without creating a

liability risk for the physician.

First, the patient can end the relationship.

Alternatively, the physician can end the relationship

after giving the patient notice, a reasonable

opportunity to find substitute care, and the information

necessary to obtain the patient's medical records.

California recognizes a civil cause of action for

“patient abandonment”.


California Civil Jury Instructions (CACI) 509 Abandonment of Patient

[Name of plaintiff] claims [name of defendant] was negligent because

[he/she] did not give [name of patient] enough notice before

withdrawing from the case. To succeed, [name of plaintiff] must prove

both of the following:

1. That [name of defendant] withdrew from [name of patient]’s care and

treatment; and

2. That [name of defendant] did not provide sufficient notice for [name

of patient] to obtain another medical practitioner.

However, [name of defendant] was not negligent if [he/she] proves that

[name of patient] consented to the withdrawal or declined further

medical care


AMA 1.1.5 - Terminating a

Patient-Physician RelationshipPhysicians’ fiduciary responsibility to patients entails an obligation to

support continuity of care for their patients. At the beginning of patient-

physician relationship, the physician should alert the patient to any

foreseeable impediments to continuity of care.

When considering withdrawing from a case, physicians:

(a) Must notify the patient (or authorized decision maker) long enough

in advance to permit the patient to secure another physician.

(b) Must facilitate transfer of care when appropriate.

AMA Principles of Medical Ethics: I, VI


Written Notice - Provided by Your Group

Notice should be sent by certified mail (return receipt requested)

A specific reason for the termination is not required

The notice should provide an effective date, with a reasonable period of

time for the patient to establish another relationship, e.g. 30 days

It is recommended that interim care be offered, however true emergency

situations should be referred to an Emergency Department

You should tell the patient how to obtain a copy of his/her medical records

The letter is a part of the patient's medical chart, and the return receipt

should also be placed in the record


Reasons for Termination - No Set List

Failure to follow the treatment plan

Repeated cancellations or no-shows

Rudeness, verbal abuse or inappropriate behavior

Unreasonable failure to pay for services


Reasons for Termination- Prohibited or Not Recommended

Presence of a disability, unless the particular disability requires care

or treatment outside your expertise

Solely because a patient is a member of a protected class (e.g.,

race, color, religion, national origin or sexual orientation)

Diagnosis of AIDS/HIV

The patient is in a critical or acute phase of treatment

Contractual requirement not to terminate



The simple passage of time alone does not

necessarily establish that a patient has

terminated the physician-patient relationship.

If there is any doubt that the relationship has

indeed been terminated, it is best to assume that

you still have an obligation to provide care.


From: Douglas Howser<[email protected] >

Sent: Fri 8/2/2016 3:20 PM


Subject: Health Care for Adolescents

Mr. Ball

Vinnie has a confidential medical problem. I want to

help him and I do not want to violate his privacy rights.

Can you please update me on the consent and privacy

laws re health care for minors? Like me, Vinnie is only

16. I still have an eidetic memory, but I have not

studied this issue.

Give my love to Kim and the kids!

Your bud,

Doogie


Consent -- Minors

California law authorizes the parent or guardian of a

minor child (i.e., anyone under age 18) to give

informed consent for most medical decisions on behalf

of a child.

There are specific and detailed exceptions where the

minor can provide his/her own consent based on their

status or the type of care being provided.


Status - Examples of Minors Authorized to Give

Legal Consent for All of their Medical Treatment:

Married or divorced minors

Minors on active duty with the US Armed Forces

Minors emancipated by a court order

“Self-sufficient” minors (15 years or older and living away from home

and managing their own affairs)

Disclosure of a minor's medical information to the parent or guardian in

the above situations may constitute an invasion of the minor's right of

privacy

For a “self-sufficient” minor, a physician may advise the minor's parent

or guardian of the treatment given or needed, with or without the

minor's consent, as an exception to the above. California Family Code

§6922(c)


Care - Examples of Types of Care that Minors

are Statutorily Authorized to Give Consent to:

Pregnancy, contraception and abortion (any age)

Contagious diseases of the type reportable to the local Health

Officer (minors 12 or older)

Sexually transmitted diseases (minors 12 or older)

Rape (minors 12 or older)

Sexual assault (any age) - but must contact the parent or guardian

unless the physician reasonably believes they were involved

Mental health treatment or counseling (minors 12 or older) if mature

enough to participate, and if in danger of physical or mental harm *

Care related to the diagnosis or treatment of drug or alcohol abuse

(minors 12 or older)

HIV tests (minors 12 or older)


Confidentiality of Medical Records - Minors

When a minor has the legal right to consent to medical

treatment, the minor generally controls the disclosure

of medical information related to that treatment and

can refuse to allow disclosure of the information to the

parent or guardian.

California Health & Safety Code §§ 123115 and 123110


Emergency Exception

Minors requiring immediate services for severe pain, or

immediate diagnosis and treatment of unforeseeable

emergency medical conditions which if not

immediately diagnosed and treated would lead to

serious injury or death may be treated without consent

under those circumstances



From: James Kildare <[email protected]>

Sent: Wednesday, August 3, 2016 1:17 PM


Subject: CONFIDENTIAL

Michael-

I had a disagreement last night with Dr. Toby Cunningham, and would

like your advice. I felt that he acted too hastily in releasing a patient

who was showing some vague but troublesome symptoms, and the

patient died the next day. His relatives are now talking about a

malpractice suit. Dr. Cunningham’s defense is that he made a

“judgment call”, and Dr. Gillespie tells me he thinks that is a legitimate

defense.

What exactly is the standard we are held to in California?

Sincerely,

Jim

James Kildare, M.D.

710 Atlantic Avenue

Long Beach, CA 90806

(562) 932-0715

The “Judgment Call” Defense Many times, a doctor will claim in his/her defense that what he/she

did was make a “judgment call” using the best information

available at the time. The argument is that a “judgment call'” does

not rise to the level of departing from good and accepted medical

practice. This can be a compelling argument. However, if the

doctor's choice of treatment was unacceptable, then that judgment

call may rise to the level of improper medical care.

In order for a practitioner to be found responsible for patient injuries,

the patient must prove that the medical provider departed from the

“standard of care”.

A plaintiff at trial must have a medical expert confirm that the

provider departed from the applicable standard.


California Civil Jury Instructions (CACI) 501Standard of Care for Health Care Professionals

[A/An] [insert type of medical practitioner] is negligent if [he/she] fails to

use the level of skill, knowledge, and care in diagnosis and treatment

that other reasonably careful [insert type of medical practitioners]

would use in the same or similar circumstances. This level of skill,

knowledge, and care is sometimes referred to as “the standard of

care.”

[You must determine the level of skill, knowledge, and care that other

reasonably careful [insert type of medical practitioners] would use in the

same or similar circumstances, based only on the testimony of the

expert witnesses [including [name of defendant]] who have testified in

this case.]


California Civil Jury Instructions (CACI) 505Success Not Required

[A/An] [insert type of medical practitioner] is not

necessarily negligent just because [his/her] efforts are

unsuccessful or [he/she] makes an error that was

reasonable under the circumstances. [A/ An] [insert

type of medical practitioner] is negligent only if [he/she]

was not as skillful, knowledgeable, or careful as other

reasonable [insert type of medical practitioners] would

have been in similar circumstances.


California Civil Jury Instructions (CACI) 506Alternative Methods of Care

[A/An] [insert type of medical practitioner] is not

necessarily negligent just because [he/she] chooses

one medically accepted method of treatment or

diagnosis and it turns out that another medically

accepted method would have been a better choice.


California Civil Jury Instructions (CACI) 508 Duty to Refer to a Specialist

If a reasonably careful [insert type of medical

practitioner] in the same situation would have referred

[name of patient] to a [insert type of medical

specialist], then [name of defendant] was negligent if

[he/she] did not do so.

However, if [name of defendant] treated [name of

patient] with as much skill and care as a reasonable

[insert type of medical specialist] would have, then

[name of defendant] was not negligent.



From: Marcus Welby <[email protected]>

Sent: Wednesday, August 10, 2016 10:14 AM


Subject: Prescription Requests

Mike, I am getting requests from “friends” of Dr. Kiley and Consuelo and others

wanting prescriptions, often simple ones, called in without a face-to-face exam. I was taught that I have to conduct a “good faith prior examination” before

prescribing. Frankly, between all the house calls I already do, and the number of patients I see in the office, I don’t know that I can take any more face-to-face! Can

I just prescribe for them if it seems to be a true medical indication?

Your old friend, Marcus

Marcus Welby, M.D. 1250 16th Street, #100A

Santa Monica, CA 90404 (310) 274-9037

The Law Requires an

“Appropriate Prior Examination” For many years, California law required physicians to perform a "good faith prior examination" and have an appropriate medical indication before prescribing drugs to a patient.

California Business and Professions Code 2242(a) now uses a slightly different phrase, prohibiting prescribing, dispensing or furnishing drugs (that are not controlled under Schedules II-V) “without an appropriate prior examination and a medical indication”.



Without an appropriate prior examination and

medical indication, a physician has committed

unprofessional conduct and may be disciplined by

the Medical Board.

"Appropriate prior examination" is not defined. The

Medical Board has stated that the phrase was

changed to remove the physician's intent from the

determination of the standard of care.

The law provides 4 specific exceptions to the

requirement of an appropriate prior examination:

When a physician has been designated to serve in the absence of the patient's

physician and prescribes, dispenses or furnishes medications only as necessary to

maintain the patient until the return of the patient's physician, but in any case no

longer than 72 hours

When a physician, again acting as a designated substitute for the patient's physician,

transmits orders for medication to an RN or LVN in an inpatient facility who has

reviewed and discussed the patient's records with the substitute physician

When a physician, acting as a designated substitute, is in possession of, or has

utilized, a patient's records to order the renewal of a medically indicated prescription

which does not exceed the original prescription in strength or amount and which may

be refilled no more than once

When a physician prescribes antibiotics to the partner of a patient diagnosed with a

sexually transmitted chlamydia infection, gonorrhea, or other sexually transmitted

infection


From: Leonard H. McCoy, M.D.

Sent: Tuesday, August 09, 2016 1:59 PM

To: Mike Ball

Subject: HIPAA-Compliant Texting

Mike-

I had to give up my communicator when I left the

Federation. My new group gave me a “smartphone”. Can I

send protected health information (PHI) by text messages

on this contraption, and still comply with HIPAA?

Best regards,

Bones


Advice most often given is YES … but only under

specific conditions

Probably the better answer is actually technically

NO … unless you have ensured compliance with

the privacy and security rules

Virtually everyone does it; very few actually comply

with HIPAA

Texting is mobile, easy, instantaneous, and highly

efficient

Texting is not secure


HIPAA is a 1996 Federal law that among other

things specifies the types of measures required to

protect the security and privacy of protected health

information (PHI)

HIPAA is essentially “technology neutral” –- it does

not require or prohibit the use of any device, and it

does not even mention texting


PHI is information about a person’s past, present or

future healthcare that could reasonably identify the

patient -- identifiers are not limited to the patient’s

name, DOB and/or SS #

PHI covers verbal, written and digital “ePHI” (including photos, social media, texts, tweets,

chats …) disclosures


Privacy

Patient permission generally not needed

for: Communication Necessary for Treatment

(“patient’s best interest”) -- Payment -- Healthcare

Operations

HIPAA not intended to delay, impede or prevent

necessary patient care

Incidental disclosures are OK, if reasonable

measures are taken to minimize disclosing PHI


Security

3 Main Types of Security:

Administrative (policies)

Physical security, and

Technical safeguards for ePHI

ePHI that is likely to have been disclosed must be

reported to the patient if not encrypted


The Problems with Text Messaging and PHI

The sender cannot authenticate the recipients, and

vice-versa

Conventional text messages are not encrypted

Text messages are stored in places outside the

control of the sender or recipient (i.e., wireless

carrier servers), as well as on their own devices

Text messages with PHI should be encrypted

and exchanged in a closed and secure network


Safeguards for Text Messaging of PHI

Secure sign-on process

Encrypted messaging

Delivery and read receipts

Date and time stamps

Customized message retention time frames

Auto locking of the device

Remote wiping programs


Additional Steps to Protect Your Practice

Have an ePHI policy outlining acceptable text

communications

Immediately report all lost devices or suspected data

breaches

Double-check the “To” field to ensure the correct

recipient; verify the accuracy of the message

Avoid info that could reasonably identify the patient

Take care to prevent incidental disclosures to family

or bystanders

Text messaging is not the best method for a dialogue


TJC Ban on Text Orders Back in Place

The Joint Commission (“TJC”), in its May 2016

Perspectives newsletter, announced an end to its ban

(first outlined in a 2011 FAQ) on texting orders.

The relief only lasted a short time before they put the

ban back in place in July. In December 2016 The Joint

Commission clarified its guidance on text messaging for

providers, saying clinicians can use a HIPAA-compliant

platform to send messages to each other but cannot

text patient care orders.


the top 10 risk management questions from physicians mike ball · 2017-04-18 · have called to my...

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