Medical Mistakes Are on the Rise - Best Practice News Alert 156

CURRENT CIRCULATION: DATE: ISSUE NO:

7468 21st January 2008 156

Welcome to Health & Life’s free email newsletter service. Tell a friend that we would be happy to add their email address to the distribution list. This service is to provide Health and Life’s clients and those who attended our presentations with up to date information on key financial and practice management issues that may affect your practice. Please do not use this as a substitute to seeking professional advice.

Writer in charge: Mr David Dahm BA.Acc, FCPA, FTIA, Ffin, FAAPM, GLFG.

Medical Mistakes Are On The Rise!

There is a 1% chance you will be sued in your professional career. A full time GP will see over 200,000 patients over a 30-year career span. This means they will make at least 2,000 mistakes in their professional career. Fifty percent (50%), or 1,000 incidents are preventable which may give rise to a negligence claim, the other 50 % are unavoidable and will not give rise to a successful claim. Unfortunately perception is reality and a simple mistake can trigger an unnecessary malpractice claim. The reality is 95% of these claims are privately settled out of court after much time, cost, and hardship to all parties.

Of concern is a recent international report that surveyed 12,000 patients in 7 countries including Australia conducted by The Commonwealth Fund *. This report states that the number of mistakes patients with chronic conditions report is much higher in Australian patients who have reported overall error rates of 26%. In the US it is 32%.

“Patient-reported errors were highest in every country for those seeing multiple doctors or with multiple chronic illnesses*”.

In Australia, medical indemnity insurers consistently report the number one mistake doctors make is misdiagnosis.

For example, if you are responsible for managing chronic conditions in a general practice, there is potentially one patient in four per hour that may be dissatisfied with your service. The potential for a litigation claim if this dissatisfaction is not handled properly and on a timely basis can be quite significant if you do not establish your clinics and affairs correctly.

Unfortunately it only takes just one claim to devastate a practitioner’s moral, reputation and confidence. This has a significant impact on the practice staff including lost time and plus large costs of defending such a claim.

What is the root cause of litigation?

The number one reason why litigation occurs is due to the poor attitude and understanding of a treating practitioner towards this issue. A better understanding will ultimately drive the culture of the practice which percolates down to the support staff who are critical part of this problem. This will significantly ameliorate any concerns and improve patient satisfaction.

For some unfortunately, it requires a real life claim before an individual appreciates that negligence is not just what the practitioner does and says in the consulting room, but it also extends into the entire environment he or she works in which is also their responsibility even if

they are an employee. All care and no responsibility does not cut it in a court of law or with patients.

It is not all doom and gloom. In fact the threat of litigation is still minimal. It can be turned into a positive experience to improve services and patient satisfaction. These benefits far outweigh the fear and actual cost of taking the right steps and even the costs of being sued if all practitioners and staff take a positive and proactive role.

You can have your cake and eat it and it is not that difficult if you know where to find your weak spots and how to make simple changes in your practice – it is not rocket science nor impossible.

Our general rule of thumb is you usually get successfully sued for what you can control and foresee not what you can’t. Don’t stress about the things you can’t change.

Practices need to anticipate and understand what is controllable and what is not and manage the practice accordingly.

We will explore some of these issues in this edition. * Toward Higher-Performance Health Systems: Adults’ Health Care Experiences In Seven Countries, 2007. The Commonwealth fund is a non profit that studies health-care issues, surveyed 12,000 adults in Australia, Britain, Canada, Germany, the Netherlands, New Zealand, and the U.S. in an effort to get a handle on actual patient experiences and perceptions.

In this edition we cover: 1. Is A Mistake Negligence?

A sobering reminder to practice owners and professional staff)!

2. Who Can Be Sued For Negligence?

3. Your Practice Staff Can Make Small Mistakes That Have Big Consequences

Negligence claims involving practice support staff: 3.1. Giving medical ‘advice’ and undertakings 3.2 Ignorance of the significance of deadlines 3.3. Poor document management, admin failures and short cuts 4. Preventing negligence by practice support staff 5. What Standard Of Care Should Be Expected?

5.1. Technical Expertise? – Are you super human?

5.2. No Experience – Registrars and Overseas DoctorsG! 5.3. Lack of Care - Overworked 5.4. Lack Intelligence – Getting Old 5.5. Human error - the 1% statistical human error.

6. What is the solution! - Manage Things You Can Control 6.1. The Treating Practitioner • • • • • •

Change Your Attitude Slow Down Consults Take Regular Breaks Attend Clinical and Non-Clinical and Take Accreditation Seriously Keep Good Clinical Notes Make Regular Practice Management Appointments

6.2. Practice Environment • • •

Efficient and Effective Work Environment Bullet Proof Systems – audit trails and automatic red flags when things go wrong Continuously Educate Staff and Patients

7.1 How Do You Know When Patients Are Not Happy?

7.2 The Quickest Way to Solve a Dissatisfied Patients Problem Step 1 - Tackle it Straight Away – Don’t wait Step 2 – Make Sure It Never Happens Again Step 3 – Prioritise and Work on the Most Common Problems First 8. Summary • • •

Accreditation!!!!

Worst Case Scenario – Get the right legal structure in place the devil is in the detail!

Bottom line prevention is better than a cure

9. Where to from here?

Medical Mistakes Are on The Rise!

1. Is A Mistake Negligence?

Yes. In a professional context, negligence is often termed malpractice.

What is negligence? The law of negligence is part of the common law. There is no written Negligence Act. Judges in a piecemeal fashion have developed the law of negligence over the centuries. There have been a number of landmark decisions.

A sobering reminder to practice owners and professional staff)!

The most important decision was the case of Donoghue v. Stevenson which was decided by the British House of Lords in 1932. The facts of this case were as follows. Mrs Donoghue went into a cafe in Paisley, Scotland with a friend, and her friend bought her a ginger-beer.

When Mrs Donoghue had drank most of the contents, the decomposed body of a snail floated out of the bottle. She suffered shock and severe gastroenteritis. She sued the manufacturers

of the ginger-beer. The manufacturers defended the case. Their ground of defence was that there was no contract between the manufacturers and Mrs Donoghue.

The judge decided that it was not necessary that there be a direct contractual connection between the person who caused the damage and the person who suffered the damage.

Negligence is committed when there has been a failure to take reasonable care to avoid acts or omissions, which it can reasonably be foreseen, will be likely to injure someone.

A professional person such as a doctor or surgeon will be judged by the standards common in his profession. If a mistake has been made and if an appropriately qualified and experienced person taking reasonable care would not have made the mistake, then the professional person will be liable in negligence.

2. Who Can Be Sued For Negligence?

Subject to what has been said above, generally anybody who has been negligent and has caused damage can be sued. It should be emphasised that there need be no contractual relations between the person suffering the loss and the person committing the wrongful act.

Complete strangers can be sued.

Employees as well as employers can be sued. There is no blanket exemption for employees, as is sometimes thought. However, an employer (as well as the employee) is liable for the negligence of an employee committed while carrying out his duties. But an employer will not be liable for the negligence of an employee if the act complained of has no relation to his duties as an employee. Only the employee is liable is such a case. But a person who suffers loss as a result of the negligence of any employee can sue either the employee or the employer. Generally, he sues the employer as the employer a) usually has more assets such as the family home and b) the employer is usually insured. However, sometimes, it may be appropriate to sue the employee.

3. Your Practice Staff Can Make Small Mistakes That Have Big Consequences Professional liability claims don’t stem just from doctors ignoring the actions of practice support staff when framing a risk management program can be a very ill-conceived strategy Some practices don’t seem to realise there is a small but significant group of professional liability claims that arise from ‘negligent’ acts or omissions by practice support staff – hence, the potential for negligence by practice support staff often receives inadequate attention in claims prevention programs.

Any practice that characterises professional liability as a ‘doctor only’ problem could be in for a nasty surprise and find itself vulnerable to claims involving practice support staff.

Negligence claims involving practice support staff When you take into account the heavy responsibilities and workloads of many practice support staff, it is probably remarkable that there are not more claims involving ‘errors or omissions’ by them.

While in some cases poor delegation or supervision by the doctors may well be an additional factor, the kinds of claims and claims prone situations involving practice support staff, particularly secretarial staff, include giving medical advice and undertakings without authority, ignorance of the significance of deadlines and statutory time limits and a variety of procedural failures involving documents, files and communications. Following are some examples.

3.1. Giving medical ‘advice’ and undertakings Sometimes practice support staff oversteps their role and provide advice or counsel that turns out to be wrong. This can happen if staff has a misplaced belief in their own ability

or scope of authority, or if they are trying to be helpful or are under pressure from a patient or doctor, especially if the doctor is not available for long periods. Examples could include: • Giving undertakings on a matter without doctors/patients instructions that are not capable of being performed by the doctor or which the patient then refuses to honour; or • Advice to family and friends based on what staff have heard the doctors say to patients.

3.2. Ignorance of the significance of deadlines The difference between ‘negotiable’ and ‘drop dead’ deadlines is not always readily apparent to support staff, with the result that deadlines can pass without being brought to a doctor’s attention. Examples could include: • Telling a patient that ‘yes, it’s OK to return the results next week’, when the documents need to be provided the next day; • Telling the person who does the mail that ‘if you are short staffed today then I guess it’s OK if you send the reports tomorrow’, when in fact today it was today it should have been sent; or • Giving low priority to results not followed up to see whether they were abnormal or not.

3.3. Poor document management, admin failures and short cuts Many little things can have big consequences when routines and controls are inadequate or practice support staff don’t follow procedures.

A patient’s health and welfare can be damaged in a variety of ways from seemingly minor events such as: • Incorrect photocopying (for example, double sided originals copied single sided and annexed to reports with pages missing); • Miscommunication (for example, a letter in the wrong envelope, faxes and emails sent to the wrong person); • Document processing errors (for example, typographical errors and inadequate version control); • Failure to request, follow up or check certain searches and inquiries; • Giving out confidential information to the other side; • Forgetting to send out appointment and practice fee information; and • Poor records management (for example, not keeping copies, slow filing, lost paperwork and sloppy file archiving).

However, it is not only secretarial staff who can get the doctors into trouble with patients, as can be seen by the following.

• Technology staff has been known to prematurely delete email addresses and directories of doctors who have left the practice, resulting in incoming instructions going into cyberspace and depriving the practice of potentially important records.

• Practice managers have been known to be slow in updating medical information onto computers, with the risk that doctors use out of date material.

• Practice nurses not properly sterilising medical instruments and disinfecting infected tabletops and surface areas.

4. Preventing negligence by practice support staff Do you adequately induct staff who are new to the healthcare environment (for example, induction about special legal obligations and their impact on day to day practice such as fiduciary duties of loyalty/good faith, confidentiality, duties to the medical board, ethics and so on, and how these translate into dealings with patients and practice procedures.

5. What Standard Of Care Should Be Expected?

It is generally accepted that human error amounts to 1%. For example, if a human being is given a complicated set of instructions to carry out, it is extremely unlikely that he will carry them out flawlessly every time. From time he or she will slip and make the 1% statistical error.

The cause(s) of a mistake or accident may be assigned to one or more of the following factors viz.

5.1. Technical Expertise? – Are you super human?

Lack of technical qualifications i.e. the person was never qualified to do the work.

Check credentials of all professionals’ especially overseas practitioners. Being super human and stating you are perfect at you job is unrealistic. Don’t hold out as being an expert on everything and qualify your advice as to any limitations of service.

5.2. No Experience – Registrars and Overseas Doctors?!

Lack of experience i.e. the person had not carried out this job many times previously.

This clearly relates to registrars. Make sure adequate time is allocated by senior doctors to closely supervise and train new doctors.

5.3. Lack of Care – Overworked Lack of care i.e. the person was distracted, daydreaming or affected by drugs, alcohol, sickness etc. A key area is overworked doctors and staff who suffer from low moral need strict policies and procedures and staff morale should be monitored daily. Ask them to rank their happiness from 1 as excellent and 5 as poor. Anything less than 3 act on it straight away – don’t let it fester.

5.4. Lack Intelligence – Getting Old Lack of the required intelligence i.e. the person did not have the required intelligence for the job. Not all of us can be genius at everything no matter how many letters are next to our name. The aging workforce is boon for practice that can extend the working lives of practitioners, however failing memories, poor judgement are increasingly becoming higher risk factors for a practice. All doctors and staff should have 6 monthly (or earlier when needed) performance appraisals to test competencies. Patient feed back via quarterly surveys is a good indicator and counselling tool when dealing with any sensitive issues.

5.5. Human error - the 1% statistical human error.

There is always a 1% chance for human error. You can’t avoid it unless you are a super human. There is no need to worry about this because if you are looking after items1 to 4 and all the suggestions in this edition your chances of a successful claim are extremely remote. There is nothing you can do about this don’t worry about it and it is very likely little if any harm could be brought on to you or the practice.

6. What is the solution! - Manage Things You Can Control The only thing you can manage are controllable areas of your practice and ignore the factors that are beyond your control. We have not provided an exhaustive list but these are the key areas you could look at.

6.1 The Treating Practitioner •

Change Your Attitude

Change the attitude towards negligence and use this fear as a positive opportunity and experience to improve patient services and satisfaction. Assess the nature and complexity of your work and design it so it accommodates to your work style and professional requirements and that of the practice. Understand and express your limitations, don’t be embarrassed we all have them.

Proactively manage the problem and the solution – ignorance and denial of the law is no excuse and is major factor contributing to negligence in the first place.

•

Slow Down Consults

Consider it may be easier and more financially viable to see fewer patients and charge a fair gap than squeeze in extra patients. Avoid night shifts if possible especially if you have to work the next day. The majority of your patients are not emergencies and can be seen by another doctor or allied health practitioner for screening purposes.

•

Take Regular Breaks

Take regular lunch breaks and plan for emergency and long appointments by using longer appointments and “catch up” time slots. Avoid double or triple booking. This should be prohibited at the front desk without peer approval.

Doctors should not be rostered to work for more than 7.5 hours a day with at least a 10 hour break between shifts. Always take 4-6 weeks annual leave.

•

Attend Clinical and Non-Clinical and Take Accreditation Seriously

All professional staff should attend clinical and non-clinical meetings about patient satisfaction and professional negligence. As a surveyor it is not rare to see doctors hide from surveyors. To the contrary I would use the opportunity if possible to find out how the practice is going.

•

Keep Good Clinical Notes

Computerised notes are the most efficient and effective way to manage this task.

•

Make Regular Practice Management Appointments

Whether or not if you are an owner of a practice set aside at least 3 hours a month to update yourself of non-clinical issues that affect the practice and /or discuss this with your practice manager and/or peers and introduce/update systems accordingly

6.2 Practice Environment

Remember your practice environment the facilities and support staff are an extension of your clinical responsibility – it does not start and end at the consulting room door.

Understand your environment and its limitations. Every practitioner will relate differently to the practice environment. Compromising and agreeing to work towards a uniformed approach is the key to success. This stops fragmentation, duplication and errors. The following are the key factors that influence quality of care and can significantly reduce your medico-legal risks.

•

Efficient and Effective Work Environment

Use the latest and well-maintained plant and equipment. Ensure you have an appropriate back up plan. For example does your server automatically email you when the back up tape fails? There is no excuse for poor or out of date equipment or system. It results in poor efficiency, low productivity and morale. Can you really afford for your computer system or defib to be down during a medical emergency? If you can’t afford it increase your fees to pay for it, join a practice that can provide the necessary infrastructure and support you need.

•

Bullet Proof Systems – audit trails and automatic red flags when things go wrong

Ensure solid practice systems exist and are regularly updated. Just look at your latest version of your practice manual and this will tell you how well you are doing. When was the last update? Similarly when was the last time your staff had regular internal and external training; Continuously and actively document key administrative and clinical pathways. Review regularly at least annually. Ask all staff at monthly meetings if they are they happy with the system. Quarterly staff surveys should be part of the process. Hand out questionnaires with clipboards for patients to complete while they wait for their appointments.

There are new and excellent technology systems that can make all these tasks very simple and cost effective. These systems automatically integrate all policy and procedures and job descriptions including graphing each staff member’s performance onto one program. We use such a system currently. Contact us for more information.

•

Continuously Educate Staff and Patients

Use technology and systems to educate staff and patients. Use telephone messages on hold, SMS and/or email patient reminders or changes to policies or for healthcare screening initiatives. More effectively use waiting room notice boards and appointment cards that encourage patients on how to improve their appointment experience. Regular staff meetings and emails including external training are critical. Make staff report back anything they learned from external courses and implement at least one good idea. Inter practice visits are also are a great idea.

7.1 How Do You Know When Patients Are Not Happy?

The key is to actively monitor on a daily basis patient dissatisfaction and make sure the boss who is ultimately responsible knows about it within 24 hours and acts on the information where appropriate on a timely basis. Indicators when things may be going wrong: •

Not paying bills – this is another good reason to charge something for your service

•

Angry tone used over the phone or angry tone of emails or letters

•

Act on gut feelings that something may be wrong check it out

•

Unusual behaviour

7.2 The Quickest Way to Solve a Dissatisfied Patients Problem Step 1 - Tackle it Straight Away – Don’t wait Usually a simple telephone call by the treating doctor, (or practice manager if it is an admin. Problem) can nip the problem in the bud. Delaying a response only annoys people. Apologise for how they feel say “I am sorry you feel this way” (as opposed to any mistake) and make sure you do something about it straight away that they you both agree to and get back to them as soon as possible. Consult your insurer or adviser if you are not sure.

Step 2 – Make Sure It Never Happens Again Assess how you recover from the problem and make system changes so the problem never occurs again and discuss it with the staff and document it in a practice manual. It never hurts to let the patient know, check with your adviser first though. Most patients want to know it will never happen to anyone else next time.

Step 3 – Prioritise and Work on the Most Common Problems First Tackle the most significant and recurring problems first start with the top 3 and make one person responsible and accountable to resolve the issue on a timely basis.

Keep a log of complaints and suggestions and act on the most frequently requested items Review your insurance claims history.

8. Summary Accreditation!!!!

Accreditation is a lifesaver to the profession. This is what your peers assess is the common professional standard which the Courts can use. Some may argue it is a rod for your back but it will not go away so it is time to appreciate its benefits and there are many. It is there to protect everyone’s interest. It should be encouraged because it is an excellent opportunity to externally test your practice systems. Please note it won’t totally absolve you from liability however it provides enormous weight and it can prevent and settle matters early in the piece.

It becomes an important part of your legal defence. By taking it seriously as a risk management exercise and not a cost in money or time you should find you will sleep better and feel more in control.

Worst Case Scenario – Get the right legal structure in place the devil is in the detail!

If you are not sure or still worried as most of this falls into the “too hard” basket carefully assess if you have used the correct legal and business structures. Do you have good and up to date doctor contracts in place? Are they only for tax purposes do they cover medico-legal issues as well? Have you divested your assets into family trusts and super funds in accordance with new bankruptcy laws passed in March 2007? When was the last time you conducted a review?

In 18 years we have never seen a practice get it completely right. It takes only one loophole to undo your entire structure. Speak to us for a initial assessment at no charge in relation to any areas that may require improvement. There is a near silver bullet structure. Seek professional advice. Don’t make yourself an attractive financial target. Note we do not condone the abuse of these structures to avoid legitimate patient claims. We have written articles on this issue, contact us if you would like some back issues.

Bottom line prevention is better than a cure Eat well and sleep well because if you do all the right things the right way patients will be happier and more satisfied. It is a good for business and it is also the best way to avoid litigation. Patients are prepared to respect and pay more for a timely and professional service.

This is what builds up the practices reputation and also attracts more doctors to your practice.

9. Where to from here?

1.

Consult your professional adviser in relation to any advice suggested;

2.

If require any news alert back issues email us;

3.

If you are not sure about any issues raised in this broadcast contact David Dahm on 1800 077 222 for an initial free no obligation consult, or email us at pa@healthandlife.com.au. Health and Life provides comprehensive practice consulting, accounting, taxation and financial planning advice for group practices and individuals.

Which topics would you like to be covered?

If there is a particular topic that you would like covered in one of our future News Alerts, please email pa@healthandlife.com.au and let us know what it is. We will then endeavour to cover your requested topic.

Do we have your email address?

It is apparent in feedback we are receiving that there are persons receiving this regular email who are not on our email list. If you are receiving this email ‘second-hand’ from another source, we would be delighted to receive your email address and we will add you to our list so that you can receive it first-hand on the day that it is sent. This invitation is open to all medical practices. Please send your email address to pa@healthandlife.com.au Do you wish to unsubscribe from our list?

Please email pa@healthandlife.com.au if you wish to be removed from our distribution list Copyright Notice This email, including any attachments, is for the personal use of the recipient(s) only. Republication and redissemination, including posting to news groups or web pages, is strictly prohibited without the express prior consent of Health & Life Pty Ltd. Disclaimer Notice Health & Life Pty Ltd’s Best Practice News Alert is designed as a comprehensive and up-to-date Accounting and Practice Management news service to alert readers to the latest in practice and related developments affecting the medical, dental and allied profession as they happen. It is published when there is news to report. No responsibility can be accepted for those who act on its content without first consulting us or obtaining specific advice.

Health and Life Pty Ltd Accounting & Practice Management Services.

“Looking after your future” PO Box 8145 Station Arcade, ADELAIDE SA 5000 Telephone

(08) 8415 5400

Fax

(08) 8231 6767

Email:

pa@healthandlife.com.au

Web Site

www.healthandlife.com.au