top ten ways to meet a plaintiff attorney tracy l. melina

Coverys Risk ManagementAll materials are subject to copyright. Reproduction without prior permission is prohibited. This information is intended to provide general guidelines for risk management. It is not intended

and should not be construed as legal advice.

Top Ten Ways to Meet a Plaintiff Attorney

Tracy L. Melina, MBA, CPHRM

CAFP

October 9, 2014

Objectives

• List ten top office practice risks leading to

physician office practice claims based on the

database of a professional medical liability

company.

• Identify ten strategies and tools to reduce risk in

the physician office.

• Describe ten practical operational approaches to

implement risk management strategies.

The Late Show Has THEIR Top Ten

# 10 - Use Email and Social Media Without

Regard to Confidentiality or PrivacyUse email and social media to communicate with

your patients

OR to talk about them.

Who cares who sees it??

Tweet

Screenshots

Click here to email

http://twitter.com/share

http://www.facebook.com/kevinmdblog

http://www.facebook.com/kevinmdblog

http://twitter.com/kevinmd

http://twitter.com/kevinmd

http://www.linkedin.com/in/kevinmd

http://www.linkedin.com/in/kevinmd

http://feeds2.feedburner.com/KevinMd-MedicalWeblog

http://feeds2.feedburner.com/KevinMd-MedicalWeblog

mailto:[email protected]?subject=I have a few questions about Risk Mitigation event

Case Examples

• Physician who blogs about the plaintiff attorney,

plaintiff, jury DURING the medical malpractice

trial – “Dr. Flea”

• Defensible case had to be settled

• Physician who shares his or her feelings about a

patient online – HIPAA violation

• ED staff taking photos of shark bite victim and

not taking care of the patient

Operational Solutions/Recommendations

1) Have an organizational social media policy that includes patient confidentiality

2) Discourage use of email for clinical information; may be used effectively for scheduling appointments, medication renewals

3) Prohibit use of email for sensitive patient information; such as HIV, STDs, substance abuse

4) Require informed consent for use of email (Sample)

Operational Solutions/Recommendations (cont’d)

4) Do not allow Tweeting or Facebook while on

duty

5) Enforce patient confidentiality at all times –

at work or outside work

6) Do not allow cell phone photos – by patients,

by visitors, or staff

REMEMBER: A Tweet or a Facebook status leaves a permanent record of the privacy violation

#9 – Release Records … Even Without a

Signed Authorization

Release medical records

to whomever

asks for them –

family, boss, ex-spouse

Case Example

• Breach of confidentiality allegation for records

released to a spouse during a divorce trial; no

consent or knowledge of the patient. Both were

patients in the practice so staff thought it was

acceptable to release a copy of the record to the

spouse.

• Purpose of the request to show that the wife was

not competent to care for children.


1) Implement policy on the release of medical

records

2) Use HIPAA-compliant medical record release

form (Sample)

3) Require patient authorization for release of the

record – to spouse, third party

4) Require specific consent for release of

“sensitive information”

5) Institute centralized responsibility for release

of records

6) Review charts prior to release for

completeness


# 8 – Ignore Non-Compliant Patients

After all, it’s the patient’s responsibility to

follow up on my advice and keep their

appointments, and go for their

consults.

We don’t have time to “babysit.”

Case Example

• Labs ordered for 58-year-old male, including

PSA levels with physical examination

• Patient unreliable historian – reported no family

history of cancer though sibling died from lung

cancer

• Patient refused rectal exam

• Did not keep scheduled office visits – either no

show or cancelled appointments

Case Example

• Patient did not get blood work drawn

• Issues not addressed at office visits for episodic

care

• Patient diagnosed with prostate cancer

• Allegation: failure to diagnose and failure to

render necessary treatment resulting in delay in

diagnosis of prostate cancer

• Verdict: $1,100,000


1) Address the non-compliance

2) Follow up on “no show” patients –

• Telephone calls (x 2)

• Letter on why the office visit is necessary

3) Use log for preventive health screenings – ordered, deferred, refused

4) Use Informed Refusal for patients refusing preventive health screenings, refusing to follow physician recommendations

• Include risks of noncompliance (Sample)

Give out sample medications

to whomever asks. No need to keep a record.

Have your staff write out

renewals for the patients. Have

the patients just call in for

what they need.

Have your name on prescription pads for the staff

to fill in for you. The staff know what you order.

# 7 – Stay Loose with Medications

(Prescriptions, Renewals, Samples)

Case Example

• Physician had prescriptions pre-signed with his

DEA numbers for the staff to use

• Patient given prescription for ampicillin by staff

member when he called about swelling and

fever post vasectomy

• Patient allergic to penicillin per his H&P one

month prior to procedure

• Patient asked if ampicillin same as penicillin –

told by medical assistant – NO

Case Example (cont’d)

• Patient took the medication, developed rash all over his body and lesions on his tongue

• Patient’s wife called physician, who was unaware of ampicillin prescription, told her it was probably an allergic reaction to soap, and to continue with the medicine.

• Patient ended up hospitalized for 3 weeks with a diagnosis of acute thrombocytopenia secondary to a drug reaction from the ampicillin and splenectomy after treatment ineffective.


• Allegations:

• Negligence in prescribing medications

• Failure to monitor

• Vicarious liability

• DPH, BRIM, and DEA violations as well –all information available under the Freedom of Information Act

• $623,500 verdict


1) Use written triage protocols – include medication renewal requests

2) Implement policy with criteria for medication renewals – who, when, information needed: date last office visit, lab work needed/when completed, patient assessment

3) Document sample medications provided: Log by medication – number in/out with quantity given to patient, lot number, expiration date (Sample)


4) Use Medication List – prescribed, samples,

over-the-counter medications

5) Use duplicate script to include copy in chart

6) Use E-prescribing – ensure transfer of

information to the patient’s medical record

7) Use only State/Federal approved prescription

forms…tamper resistant

8) Secure prescription pads

# 6 –Just Terminate Your Relationship with

the Patient

Terminate the relationship with a patient because

you just don’t like them; or they are too much

work; or

they need special services like an language

interpreter…

Who’s going to pay for that?!

Case Example

• Non-English speaking patient seeing a doctor for

abdominal problem; unresolved

• After several months, doctor terminated the

relationship because he felt the patient was not

really sick and only trying to get drugs, despite

his complaints of severe pain

• Few weeks later patient had to undergo

emergency bowel surgery and died in the

process


• Allegations:

• Patient abandonment

• Failure to diagnose

• Negligence

• Failure to communicate

• Verdict: $ 950,000


1) Establish protocols for “Termination of the

Physician: Patient Relationship;” include

discussions with the patient

2) Clarify “Discharge Protocol” if group practice

3) Formally communicate with the patient (Sample

letters)

4) Document attempts to communicate with the

patient, actions taken


6) Establish “Interpreter Protocols” – no family or

friends, especially related to H&P, informed

consent

7) Use resources for sign and language

interpretation

8) Consider hiring bilingual staff, preferably

certified as interpreters

# 5 –Documentation – What’s the Big Deal?

Documentation – why bother??

You know what you did.

Who cares if no one can read it; I

am the only one who needs to

read my notes.

Why bother filling in all those boxes

on the forms?

Who has time to circle the small words?

You can always add or change the notes later.

Case Example

• 26-year-old male brought to ED at 10:45 pm by

police, severely intoxicated. Found lying down

outside a local pub. Initial exam - “no apparent

trauma;”placed on his side to “sleep it off ”

• Next documented note at 11:30 pm, not

breathing and cyanotic, pupils fixed and dilated.

Autopsy-cause of death-respiratory arrest

Case Example (Cont’d)

• Allegations

• Failure to appropriately assess and monitor

• Failure to appropriately intervene

• No supporting documentation


1) Use specialty-specific templates

2) Ensure policy on how to make changes to

notes; document date if “after the fact”

3) Develop policy on use of scribes

4) Monitor quality of documentation

5) Develop system of checks & balances for note

for each patient interaction/encounter

# 4 –Electronic Health Records- Just a Fad

All those screens.

All those templates – you can just click “normal” and let the computer do the

work.

Why type when you can copy and paste??

I have to review ALL the record????

Case Example

• 64-year-old female, h/o hypertension, prescribed

Amitriptyline for depression

• c/o intermittent episodes of lightheadedness,

dizziness for 15 months

• Past office visit notes and medication record

were being electronically copied and pasted into

current records

• Blood pressure medicine adjusted – medication

record not updated


• Several office visits over 13 months with c/o anorexia, weight loss – dx: Barrett’s esophagitis

• No change in PMH from previous office visits

• Continued c/o’s, BP medication changed, symptoms persisted

• 6 months later, dx: orthostasis; new medication prescribed

• Referred to several neurologists with varied dx

• Covering doctor ordered Amitriptyline levels, which were found to be abnormally elevated


• Medication discontinued but patient developed ARDS, died from respiratory failure

• Allegations:

• Failure to diagnose


• Lack of informed consent

• Documentation led to questioning provider credibility

• Verdict: $1,000,000


1) Provide user-customizable templates (specialty

specific)

2) Standardize templates (including telephone

communication)

3) Enforce policy on use of “cut and paste”

4) Implement selected forced functions (such as

allergy field)


5) Utilize automatic log off

6) Use the electronic tracking feature for follow-up

and preventive health

7) Ensure updated Medication and Problem List

• Anticipate that liability claims will be reduced by

appropriate use of EHR

# 3 –Telephone Communication – If I Ignore

It, It Will Go Away

The telephone is just nuisance. Patients are calling

all the time – morning, noon, and especially at

night. I am too tired to write down what I told

them.

You tell them what to do and it’s

their responsibility to do it.

You just do not have time to talk with the

patients – that’s what you have staff for.

Case Example

• Patient seen with c/o blood in urine, pain during

urination; diagnosed with UTI and hematuria.

• Patient had cystourethroscopy, bladder

irrigation, antibiotics; seen in 2 week follow-up

with urine clear, pt asymptomatic.

• Patient called month later with same c/o; told to

come in for appointment. Patient did not come

in.

• Patient called 6 months later with same c/o.


• Again told to come into the office for exam.

Patient failed to show up.

• Several months later, MD sued for medical

malpractice – failure to timely diagnose patient’s

renal cell carcinoma with mets to lungs, loss of

chance of survival.

• Patient claimed he called office, was told he

didn’t need to come in.

• Telephone calls and response not documented.


• Jury found Dr. 53% negligent and plaintiff 47%

comparatively negligent.

• Plaintiff awarded $500,000,which was then

reduced by plaintiff’s negligence.

Bottom Line:

No documentation, no follow up, especially after

second call for same complaint


1) Document clinically pertinent calls, including

appointments offered and refused

2) Document after-hours calls and advice

provided

a) System for documentation of after-hours

calls

3) Ensure standards for answering service

4) Use telephone message templates (Sample)

# 2 –Cancellation or No Show Patients – No

Worry

If a patient cancels and does not reschedule or

does not keep their appointment, it is not your

problem.

How much more to we have to

do???

Case Example

• 64-year-old male presented to ED with PMH significant for obesity, hypertension, hyperlipidemia, arteriosclerotic heart disease, c/o paresthesias of hand and fingers

• BP 210/104; discharged home to follow up with PCP within 48 hours

• Patient did not keep appointment; no follow up although PCP aware of ED visit [but had not reviewed ED record]

• Patient had been offered endarectomy in past but refused


• Patient on Plavix, which he had stopped on own

• Episodic complaints to dropping things, weakness

• Physician attempted to schedule MRI but not on STAT basis

• Patient did not contact Radiology for MRI for several days

• MRI finally done at 11 PM week later but not read by Radiology until next morning

• PCP notified that patient had suffered a stroke


• Allegations:

• Failure to Diagnose and Treat

• Failure to Refer

• Failure to Order Diagnostic Testing on STAT

Basis

• Settlement: $750,000


1) Use system to track and follow up on no

show/cancellation patients

2) Document attempts to contact patients

a) Rule of thumb – two calls then letter

3) Record events in the chart

4) Educate patient on why follow up, tests needed

5) Consider discharge of non-acute patient

Finally …

The # 1 way

to meet

a plaintiff attorney …

# 1 –Tracking and Follow Up – Just Don’t Do It!

Order lab work, diagnostic tests, consults and

assume the tests and consults will be done.

You can’t possiblY track if the

patient has gotten the test or

lab work done.

If there is something important with the consult, the

other physician will call you.

Case Example

• 40 year-old woman with c/o constipation, rectal

bleeding (no family history of cancer)

• Had flexible sigmoidoscopy with dx: internal

hemorrhoids, few diverticula

• “To be seen in office” but patient not seen for 3

years

• Seen for abdominal pain, had colonoscopy;

ordered Senekot to loosen her stools

• 3 months later c/o low back pain after colonoscopy

but no follow up; “not related to colonoscopy”


• Seen after 3 months with dx: IBS; ordered Senekot, high fiber

• Referred to GYN to r/o endometriosis – no evidence of consult completed

• Patient no show for follow up appointment; no follow up

• 6 months later called for Miralax refill; refilled without being seen

• 5 months later prescribed Prevacid/Protonix(whichever worked best); no follow up


• 14 months later, given Zantac and re-prescribed Prevacid (patient had stopped taking Prevacidon own)

• 6 months later dx: GERD, anemia; recommended another upper GI if not feeling better

• 3 months later, Prevacid increased; no further studies

• 5 months later, referred to GI; colonoscopy normal


• 3 months later, again seen by GI; got Upper GI and colonoscopy -> Dx: poorly differentiated invasive adenocarcinoma of the stomach

• Began chemotherapy, 10 months later succumbed to cancer at age 48

• Allegations:

• Failure to timely diagnose cancer

• Failure to refer


• Loss of chance to have timely testing and treatment


1) Develop system for tracking diagnostic tests,

labs, and consultation

a) Add to schedule as note, accordion files,

excel spreadsheet – leaving the chart out is

not the solution

2) Communicate results to the patient – normal

and abnormal

a) Never advise that “No news is good news”


3) Allow nothing to be filed without indication of

physician review and disposition (5 Ws)

4) Use stamp for indication of review and plan for

follow-up (Sample)

5) Use active, not passive, “Alerts” in EHR for lab

results, consult reports

• Pending

• Results reporting

Remember:

“When it comes to the future, there are

three kinds of people:

those who let it happen,

those who make it happen,

and those who wonder what happened.”

John M. Richardson, Jr.

http://thinkexist.com/quotes/john_m._richardson,_jr./

Questions/Discussion

top ten ways to meet a plaintiff attorney tracy l. melina

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