Magmutual Risk Management Handbook

THE MAGMUTUAL RISK MANAGEMENT HANDBOOK

© 1994-2013 MAG Mutual Insurance Company

The MagMutual Risk Management Handbook

INTRODUCTION We are pleased to provide our policyholders with this excellent medical office practice resource.

The MagMutual Risk Management Handbook was designed to help physicians and their office personnel with suggestions and tips to improve office systems, address patient safety, and ultimately improve the quality of patient care being delivered in medical office practices, regardless of practice setting.

The Handbook treats topics under Practice Management, Communications, Medical Records Management, Clinical Risk Management, Managed Care, Quality Improvement; Medication Safety and The Litigation Process. A Table of Contents has been included to help you quickly locate the topic you need. Since we are continually revising content and adding in additional topics on an ongoing basis, we do not recommend that you copy the entire Handbook.

We hope you enjoy the MagMutual Risk Management Handbook, and find it useful in helping you establish sound risk management and patient safety policies and procedures for your practice.

Mary Gregg, Mary G. Gregg, MD, FACS, MHA Chief Medical Officer, SVP Laura Martinez, BSN, RN, MS, CPHRM, FASHRM Vice President Risk Management

The MagMutual Risk Management Handbook

1

TABLE OF CONTENTS Introduction Practice Management ............................................................................................... Section 1 Credentialing of Healthcare Providers ........................................................................ 1.1 Scheduling .................................................................................................................... 1.2 Billing and Collections ................................................................................................. 1.3 Medical Office Equipment ........................................................................................... 1.4 Patient Emergencies in the Medical Office ................................................................ 1.5 Closing the Medical Practice ....................................................................................... 1.6 Videotaping Surgical Procedures ................................................................................ 1.7 Communications ....................................................................................................... Section 2 Confidentiality and HIPAA ............................................................................................ 2.1 HIPAA/HITECH Frequently Asked Questions .............................................................. 2.2 Dealing with Anger ....................................................................................................... 2.3 How to Apologize Without Admitting Liability ............................................................. 2.4 Handling Patient Complaints....................................................................................... 2.5 Terminating the Physician-Patient Relationship ........................................................ 2.6 Helping the Bereaved .................................................................................................. 2.7 Notifying Patients of Test Results ............................................................................... 2.8 Tracking System for Diagnostic Reports .................................................................... 2.9 Patient Education ...................................................................................................... 2.10 Patient Information Booklet ..................................................................................... 2.11 Sample Patient Information Booklet ....................................................................... 2.12 Patient Satisfaction Survey ...................................................................................... 2.13 Importance of Maximizing Patient Rapport ............................................................. 2.14 Office Policy and Procedure Manual........................................................................ 2.15 Telephone Advice ...................................................................................................... 2.16 Telephone Techniques for the Office Personnel ..................................................... 2.17 Answering Services ................................................................................................... 2.18 Answering Machines ................................................................................................. 2.19 Providing Interpreters for Hearing Impaired and Limited English Proficient Patients ....................................................................................................................... 2.20 Medical Records ....................................................................................................... Section 3 Medical Records .......................................................................................................... 3.1 Abbreviations................................................................................................................ 3.2 Record Retention ......................................................................................................... 3.3 Retirement of Records................................................................................................. 3.4 Destruction of Records ................................................................................................ 3.5 Release of Confidential Information ........................................................................... 3.6

The MagMutual Risk Management Handbook

2

Authorization for Release of Medical Information-Checklist for Compliance .......... 3.7 Release of Records ...................................................................................................... 3.8 Release for Purposes of Payment, Treatment & Healthcare Operations................. 3.9 Refusal to Release Records to Patient .................................................................... 3.10 Release of Records to Other Physicians ................................................................. 3.11 Release of Other Physician‘s Records ..................................................................... 3.12 Personal Representatives – Who May Authorize Release of Records .................. 3.13 Responding to Subpoenas, Requests for Production of Documents and Search Warrants .................................................................................................................... 3.14 Release of Drug and Alcohol Records ..................................................................... 3.15 Release of Psychiatric or Psychotherapy Records .................................................. 3.16 Release of AIDS/HIV Records .................................................................................. 3.17 Charging for Copies of Records................................................................................ 3.18 Mandatory Release/Reporting ................................................................................. 3.19 Faxing and Emailing Patient Information ................................................................ 3.20 Releasing Records Related to Treatment under Workers‘ Compensation ........... 3.21 Electronic Medical Records (EMR) and HIPAA Security Rule ................................ 3.22 Release of Medical Logs & Employee Signature Log ............................................. 3.23 Abbreviations............................................................................................................. 3.24 Clinical ...................................................................................................................... Section 4 Communications among Healthcare Professionals .................................................. 4.1 Coverage and Taking Call ............................................................................................ 4.2 Consultations and Referrals ........................................................................................ 4.3 Errors in Diagnosis ....................................................................................................... 4.4 Suggestions for Preventing Medication Errors........................................................... 4.5 Recommendations for Verbal Orders to Help Ensure Patient Safety ...................... 4. 6 Precautions When Prescription Refills ....................................................................... 4.7 Guidelines for Controlling Prescription Vocabulary and Standardizing Order Communication .......................................................................................................... 4. 8 Preprinted Order Forms, Standing Orders and Order Sets ...................................... 4.9 Controlled Drugs and Patient Management........................................................... 4.10 Americans with Disabilities Act ................................................................................ 4.11 Working With Mid-level Practitioners ...................................................................... 4.12 Risk Management Issues in Telemedicine.............................................................. 4.13 Office-Based Surgery Safety ..................................................................................... 4.14 Litigation.................................................................................................................... Section 5 Claims/Incident Reporting .......................................................................................... 5.1 Post Incident/Damage Control ................................................................................... 5.2 Physician‘s Guide to Litigation of the Medical Professional Liability Case .............. 5.3 Legal Glossary .............................................................................................................. 5.4

The MagMutual Risk Management Handbook

3

Legal ....................................................................................................................... Section 6 Good Samaritan & Volunteer Physician Laws ............................................................ 6.1 EMTALA – Duties of On-Call Physicians; Penalties .................................................... 6.2 Quality Improvement/Risk Management Plan .................................................... Section 7 Medical Office Quality Improvement/Risk Management Plan .................................. 7.1 Patient/Customer Satisfaction/Advocacy Program ................................................... 7.2 Indicator Data Collection Form ................................................................................... 7.3 Indicator Outcome Report Form ................................................................................. 7.4 Improvement Action Plan Form................................................................................... 7.5 Indicators ...................................................................................................................... 7.6 Patient Advocate Report .............................................................................................. 7.7 Patient Advocate Monthly Report ............................................................................... 7.8 Patient/Customer Questionnaire ................................................................................ 7.9 Other Resources ....................................................................................................... 7.10

The MagMutual Risk Management Handbook

4

SECTION 1 – PRACTICE MANAGEMENT 1.1

CREDENTIALING OF HEALTHCARE PROVIDERS All physicians and licensed professional medical office staff members must be appropriately credentialed. It is important to annually verify that each licensed professional working in the practice, including the physician(s), have timely renewed their licenses, as well as have maintained unrestricted privileges at the healthcare facilities in which they provide care to their patients. Practices may benefit from having licensure and credentialing tracking systems in place. It is also important for the practices‘ patients to be able to distinguish the professional roles each employee plays in the practice. For example, midlevel providers should wear name tags, and introduce themselves to patients accordingly to avoid the impression that they are physicians; the other employees in the practice should do likewise.

STAFF CREDENTIALING Each medical practice should have a procedure in place to screen future and current employees. In addition, it is particularly important to screen each independent contractor before he/she begins work. The person responsible for managing the office personnel and hiring independent contractors should do the following: Verify education and licensing.

Keep a current copy of each employee or independent contractor‘s professional license status (i.e., nursing). Check renewal status.

Check employment history, including references.

Inquire about any lawsuits or formal complaints arising within the scope of his/her professional activities.

Investigate any patient complaints or attitude problems.

Verify professional liability insurance coverage. Obtain a certificate of insurance.

Determine whether the employee‘s limits of coverage are adequate.

The MagMutual Risk Management Handbook

5

Have a written policy that requires a probationary period in which the new employee and/or independent contractor must satisfy and complete a skills evaluation.

1.2

SCHEDULING A common source of patient dissatisfaction in a physician‘s office is the length of time patients must wait either to get an appointment or to see the physician once they arrive at the office. When there is a dissatisfied patient, staff productivity and revenues decrease while the risk of a professional liability claim increases. To keep this from happening, each physician should evaluate his/her scheduling practices with the following in mind.

In most cases, the first contact a patient has with a physician‘s office is with the receptionist who makes the appointment. MAG Mutual recommends that each office periodically evaluate the scheduling process including the following: Determine the length of time it takes to get an appointment.

Evaluate the receptionist‘s demeanor and telephone skills.

Verify that the receptionist receives the patient‘s permission before placing him/her on hold.

Determine the average length of time patients are on hold.

When scheduling appointments, offices should allow an appropriate length of time to properly address a patient‘s needs. The maximum time a patient should wait in the reception area should be 30 minutes.

Research shows that if a patient waits any longer, he/she will most likely be dissatisfied. To decrease the likelihood of having a dissatisfied patient, MAG Mutual recommends the following: Schedule extra time for new patients, complex treatments, physicals and other office visits that require more time than usual.

Do not overbook patients.

Encourage your staff to ask patients the purpose of their visit and to establish a system of setting aside time slots according to patients‘ problems. For example, the receptionist should say to patients, ―Please tell me what you‘d like to see the physician about, so I can be sure to schedule enough time.‖

The MagMutual Risk Management Handbook

6

Consider scheduling patients early morning or early evening once or twice a week to accommodate working patients who find it difficult to see the physician during regular business hours.

Establish a policy for walk-in patients and communicate it to the patients.

Keep walk-in patients informed of the estimated length of wait.

Defuse a patient‘s anger by informing of delays when the patient arrives. Giving the patient an opportunity to reschedule or run an errand in the interim shows respect for the patient‘s time.

Block out time in the appointment book to catch up on walk-in patients and emergencies.

Keep patients informed of any delays and give them the reason (emergency, called to the hospital, patient treatment taking longer than expected, etc.).

Call patients at home or work to advise them of any expected delays.

Review charts of patients who miss their appointments and determine whether follow-up activity is needed.

Assist patients in scheduling appointments with specialists or other treating physicians.

Documentation of appointment information is important for several reasons. It helps to facilitate a steady patient flow, but most importantly it provides information on patient compliance. Following are several guidelines to which all medical offices should adhere.

Document scheduling information in ink.

Note any missed or canceled appointments in the appointment book/computer.

Do not erase, obliterate or white out any appointment in the appointment book. If a computer system is used, do not delete entries.

Document in the patient‘s medical record the failure to keep an appointment.

The MagMutual Risk Management Handbook

7

Document any attempts to contact the patient to reschedule the appointment. If a patient‘s condition is serious, send letters to the patient, certified mail/return receipt requested, advising of the need for follow-up. Place a copy of the follow-up letter in the patient‘s medical record.

Retain appointment books/ information for 10 years.

1.3

BILLING AND COLLECTION Many claims are made in response to billing and collection efforts.

This may occur when a patient is not aware of the physician‘s fees, the office‘s collection policies or is dissatisfied with his/her treatment and has not received satisfactory explanations of his/her medical care before receiving a bill. Having a policy in place that addresses related risk management concerns may help to avoid conflicts that frequently arise as a result of billing and collection efforts. All medical offices should develop a written policy that includes the following: Explains the fees and payment requirements prior to the patient‘s first visit. Include the explanation in the office‘s patient information booklet.

Keeps a patient‘s financial information separate from his/her medical record.

Establishes a review procedure for circumstances that may warrant special consideration (patient complaints, hardship cases, unexpected outcomes, etc.)

Does not deny continued care or discharge a patient solely because the patient filed bankruptcy.

Considers the patient‘s past payment record.

Considers the patient‘s payment attempts.

Evaluates the quality of patient care.

Considers the patient‘s satisfaction with the treatment and/or outcome.

Determines the cost of legal action vs. the amount of money owed.

The MagMutual Risk Management Handbook

8

Requires the physician review the patients file prior to initiating aggressive collection action.

Does not send original patient financial information to a collection agency.

To enter into a HIPAA compliant Business Associate Agreement (BAA) with any billing or collection agency employed by the medical office.

Limits patient medical information given to the collection agency and provide information only in accordance with the BAA. Maintain and dispose of patient information in compliance with applicable law and as noted in Section 3 of this Handbook.

Requires policyholders to immediately contact MAG Mutual‘s Claims Department if an adverse event has occurred and the patient is demanding financial restitution.

1.4

MEDICAL OFFICE EQUIPMENT Occasionally, patients are injured because of faulty or improper use of equipment. To prevent this from occurring, MAG Mutual recommends that each medical office implement a policy on regular maintenance and use of equipment. The following guidelines should be included in the policy: Train all employees on new equipment prior to placing it in use.

Document each employee‘s training on the equipment, and place that documentation in the employee‘s personnel file.

Require a skills test before an employee may use the equipment without supervision.

Calibrate any equipment as recommended by the manufacturer and document this activity in a log established for that piece of equipment.

Verify that equipment has been properly installed.

Do not operate any equipment without the recommended safety devices.

The MagMutual Risk Management Handbook

9

Assign an individual to be responsible for preventive maintenance for all equipment in the office.

Keep a log of preventive maintenance for all pieces of equipment in the office, including maintenance performed by vendors. Keep copies of all preventive maintenance logs for at least 10 years.

Verify that vendors are using the approved maintenance schedules and protocols for an individual piece of equipment.

If there is a patient injury involving the use of equipment, remove the equipment (including all the disposable and non-disposable equipment connected to it) from use and appropriately mark it so it is not put back into use.

Preserve the equipment in a secured location, leaving it just as it was when the injury occurred.

Limit access to the equipment to prevent anyone from tampering with it.

Contact MAG Mutual‘s Claims Department immediately to report any patient injury related to equipment failure.

Do not send the equipment to the manufacturer until an independent third-party investigation has occurred and your legal counsel has approved it.

Do not document any assumptions regarding equipment failure or improper use of the equipment in the medical record.

1.5

PATIENT EMERGENCIES IN THE MEDICAL OFFICE All medical offices should be prepared to respond to patient emergencies that may occur in the office. The physician and his/her staff should be able to respond in a timely and efficient manner to provide the best care possible. The following guidelines will help achieve this goal: Develop a written policy for handling emergencies in the office.

Post emergency telephone numbers such as ambulance, hospital, poison control, etc. next to all telephones.

Require all staff to maintain current CPR certification.

The MagMutual Risk Management Handbook

10

If the office maintains emergency equipment and/or drugs, require that all personnel are adequately trained to use such equipment and drugs.

Assign an individual the responsibility for checking all emergency supplies on a daily basis. (Equipment should be checked to insure it is in good working condition. Drugs should be checked to make sure they are not out of date.)

Periodically have emergency drills so staff members do not forget their responsibilities.

1.6

CLOSING THE MEDICAL PRACTICE Physicians need to address many issues when closing their medical practice. Below are some of the major issues that should be addressed.

Notify employees well in advance of the office closing to allow them enough time to seek other employment.

Consider employing a few staff members after the office has closed to handle medical records, accounts receivable, payables, etc.

Assist employees in securing employment elsewhere.

Send a letter to all active patients at least two months prior to closing the office. The letter should include the reason for closing the office, the date of the closing and any recommendations for further treatment. Include an authorization to release medical records in the letter. Also, provide telephone numbers for local medical societies or physician referral services to assist the patients in finding another physician.

Notify all colleagues of the date of the office closing.

Retain all original medical records.

If a patient requests his/her medical record, send only copies.

If the physician is transferring his/her records to another physician, develop a written agreement stipulating that the physician still owns the records and the custodian of the records will not destroy the records, alter the media or transfer the records to

The MagMutual Risk Management Handbook

11

another physician without written permission from the physician.

In the alternative, the agreement should at a minimum allow the retiree access to the records as necessary (e.g., for the defense of a claim.)

Maintain a list of transferred files and their disposition.

• The general rule for retaining medical records for 10 years (see Section 3) does not apply to physicians retiring from practice.

(See Chart Medical Records in Section 3 - Record Retention).

However, it is recommended that retiring physicians maintain medical records as long as practical and feasible, and preferably, until expiration of any applicable statute of limitations.

Notify MAG Mutual‘s Underwriting Department, the DEA and Composite State Board of Medical Examiners of the physician‘s intention to close his/her office.

Notify hospitals and the physician‘s professional societies of the physician‘s intention to close his/her office.

Make provisions for the collection of accounts, making sure the physician‘s policies regarding billing and collections are maintained by the third party that handles the collections.

For additional information, physicians may obtain a book entitled Closing Your Practice from the Department of Practice Development Resources of the American Medical Association at (312) 464-5000.

1.7

VIDEOTAPING SURGICAL & OBSTETRICAL PROCEDURES Use of a video camera in the operating room or delivery room has become increasingly popular as medical technology has improved. Physicians use videotapes of surgical and obstetrical procedures for education and training, and patients often receive a videotape of their procedures.

The educational value of videotaping such procedures is compelling as well. A videotape allows a physician to learn from his/her past experiences, and other physicians can benefit by viewing the work of others.

There is controversy as to whether a videotape is part of the patient‘s medical record and could be introduced in court as evidence. However, it is certain that if a lawsuit arises out of a surgical or obstetrical case, the existence of a videotape of the surgery or delivery will be-

The MagMutual Risk Management Handbook

12

come an issue. Once introduced, videotape evidence of a procedure will carry a lot of weight with a jury. Of all evidence presented, including the medical record and physician‘s testimony, the videotape will prevail as one of the most significant pieces of evidence presented.

MAG Mutual recommends that healthcare providers only videotape for training or educational purposes and discontinue routine videotaping of surgical and obstetrical procedures.

If such a procedure must be videotaped for training or educational purposes, then physicians and hospitals should adhere to the risk management guidelines detailed in the following: Tape only those procedures that will be used for training or educational purposes.

Obtain the patient‘s written consent to videotape his/her procedure and assure in the consent that the patient understands it is for education only.

Do not identify patients on educational videotapes.

Do not include audio in the taping.

Do not give patients copies of their videotaped procedures.

Maintain a consistent policy for filming, retaining and destroying videotapes.

Ensure the operative / delivery report is thorough and accurate.

SECTION 2 – COMMUNICATIONS 2.1

CONFIDENTIALITY AND HIPAA Patient privacy and confidentiality is essential. Many suits have been filed due to the breach of confidential information. It is the patient‘s right to decide what information may be revealed to others, with certain exceptions. Privacy Regulations adopted under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) have strengthened confidentiality laws. These regulations further evolved, and were finalized in the HIPAA Omnibus Final Rule which became effective, March 26, 2013. In addition, each state has enacted privacy statutes, rules and regulations, some of which may supersede HIPAA. It is incumbent upon all who work with patient health information to know

The MagMutual Risk Management Handbook

13

and apply these rules in daily practice, protecting your patient‘s privacy rights.

Information pertaining to patients such as personal data, medical notes or billing information is confidential and generally may not be communicated to others without a patient‘s signed authorization in a form that complies with the HIPAA privacy rules. The HIPAA privacy rules permit release of a patient‘s health information without patient authorization for purposes of treatment (e.g., to another physician), payment (i.e., billing and coding) and healthcare operations (e.g., reporting claims or lawsuits to medical professional liability insurers).

Physicians should incorporate these concepts into their practice and procedure manuals to ensure consistent and appropriate compliance with the privacy rules. Even with patient authorization, the physician must be careful to determine to whom the information will be sent. Unless authorized by applicable law as noted above, never give medical information over the telephone unless there is written authorization from the patient or his/her legal representative to do so.

Do not discuss a patient‘s illness or medical condition with office staff unless they have a need to know. Disclose only the minimum amount of health information necessary to accomplish the task at hand properly. In addition, do not discuss a patient‘s illness with family members or friends unless so authorized or permitted by the patient. Also, do not discuss medical care, treatment or billing issues with the patient in the presence of others unless they have a need to know. Loose talk that is overheard by someone who knows the patient can be the basis for a defamation or invasion of privacy lawsuit. Even though incidental disclosure of health information like this may not be a violation of the HIPAA privacy rules, physicians and office personnel should limit the amount of information that might be overheard in such conversations.

Healthcare professionals should also use discretion when talking to patients or conducting business on his/her cellular telephone. It has been reported that confidential conversations have been overhead on police scanners and radios.

All employees of a medical practice should be thoroughly trained on confidentiality and patient privacy issues. It should be stated in the personnel policies that violating a patient‘s privacy is grounds for termination.

Employees should sign a written statement, which is kept in their personnel files, indicating that they understand the office/clinic confidentiality and patient privacy policy and will maintain the confidentiality of patient information and medical records.

The MagMutual Risk Management Handbook

14

2.2

HIPAA/HITECH, FREQUENTLY ASKED QUESTIONS What are the Administrative Requirements?

Developing and implementing written privacy policies Designation of a privacy official and a contact person responsible for receiving complaints and providing individuals with privacy practices Training of all workforce members on its privacy policies Mitigating any harmful effect that was knowingly caused by disclosure of PHI Implementing safeguards, such as shredding documents before discharging them Developing procedures for allowing individuals to complain about its privacy policy and informing the patient that complaints can be submitted to HHS Not requiring a patient to waive privacy rights as a condition of obtaining treatment Maintaining the privacy policy and procedures, privacy practice notices, and disposition of complaints for six years.

Who is required to follow the HIPAA law?

The Administrative Simplification standards adopted by Health and Human Services (HHS) under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) apply to any entity that is: a health care provider that conducts certain transactions in electronic form (called here a "covered health care provider"), a health care clearinghouse, and / or a health plan.

An entity that is one or more of these types of entities is referred to as a "covered entity" in the Administrative Simplification regulations (Centers for Medicare & Medicaid Services).

What are your obligations?

You are required by law to: Maintain the privacy of protected health information Give notice of your legal duties and privacy practices regarding health information to each patient Follow the terms of your notice that is currently in effect

The MagMutual Risk Management Handbook

15

What information is protected?

Information doctors, nurses and other health care providers put in the medical record.

Conversations about patient care with other providers Health information in a health plan‘s computer system What are some examples of PHI? Name Address (including street, city, county, zip code) Name of employer Andy date (birth date, encounter date) Telephone and FAX numbers Email addresses Social Security Number Medical records What is the ―minimum necessary standard‖?

The minimum necessary standard is a key protection of the HIPAA Privacy Rule, It is based on sound current practice that protected health information should not be used or disclosed when it is not necessary to satisfy a particular purpose or carry out a function. The minimum necessary standard requires you to evaluate your practices and enhance safeguards as needed to limit unnecessary or inappropriate access to and disclosure of protected health information.

Are there any exceptions to the minimum necessary standards?

Yes. Minimum necessary is not required for the following: Requests by a health care provider for treatment purposes.

Disclosures to the individual who is the subject of the information.

Disclosures made pursuant to an individual‘s authorization.

Disclosures to the Department of Health and Human Services (HHS) Uses or disclosures that are required by other law (U.S. Department of Health and Human Services) Under what circumstances can PHI be shared?

The MagMutual Risk Management Handbook

16

For Treatment You may use and disclose Health Information to coordinate treatment with other health care providers. For example, you may disclose Health Information to doctors, nurses, technicians, or other personnel, including people outside your office who are involved in your patient‘s medical care.

For Payment You may use and disclose Health Information so that you or others may bill and receive payment from an insurance company or a third party for the treatment What are some examples of PHI? Name Address (including street, city, county, zip code) Name of employer Andy date (birth date, encounter date) Telephone and FAX numbers Email addresses Social Security Number Medical records What is the ―minimum necessary standard‖?

The minimum necessary standard is a key protection of the HIPAA Privacy Rule, It is based on sound current practice that protected health information should not be used or disclosed when it is not necessary to satisfy a particular purpose or carry out a function.

The minimum necessary standard requires you to evaluate your practices and enhance safeguards as needed to limit unnecessary or inappropriate access to and disclosure of protected health information.

Are there any exceptions to the minimum necessary standards?

Yes. Minimum necessary is not required for the following: Requests by a health care provider for treatment purposes.

Disclosures to the individual who is the subject of the information.

Disclosures made pursuant to an individual‘s authorization.

Disclosures to the Department of Health and Human Services (HHS) Uses or disclosures that are required by other law

The MagMutual Risk Management Handbook

17

(U.S. Department of Health and Human Services) Under what circumstances can PHI be shared?

For Treatment You may use and disclose Health Information to coordinate treatment with other health care providers. For example, you may disclose Health Information to doctors, nurses, technicians, or other personnel, including people outside your office who are involved in your patient‘s medical care.

For Payment You may use and disclose Health Information so that you or others may bill and receive payment from an insurance company or a third party for the treatment Can I honor a patient requests that I email records in an unencrypted format?

You may send individuals unencrypted e-mails if they have advised the individual of the risks and the individual still prefers that method of delivery (American Health Information Management Association).

Do I have more than 30 days to respond to a request for medical records if the records are maintained off site?

You have 30 days with a one-time 30 day extension to respond to the request (with the written notice to the individual of the reasons for delay and expected completion date).

This provision extends the 30-day time limit with a one-time 30-day extension to respond to requests for electronic access. This aligns the time period to respond, no matter the location or the media.

What is a considered a ―breach‖?

An impermissible use or disclosure of PHI is presumed to be a breach unless you or your business associate, as applicable, demonstrates that there is a low probability that the PHI has been compromised (American Health Information Management Association) Do I have to notify the patient of a breach only if there is a risk of harm?

The Office of Civil Rights has removed the harm standard and modified the risk assessment to focus more objectively on the risk that the PHI has been compromised.

The MagMutual Risk Management Handbook

18

Thus, breach notification is not required under the final rule if a covered entity or business associate, as applicable, demonstrates through a risk assessment that there is a low probability that the PHI has been compromised, rather than demonstrate that there is no significant risk of harm to the individual as was provided under the interim final rule (American Health Information Management Association).

If a breach occurs, what factors must I consider to determine whether there is a low probability that PHI has been compromised?

To determine whether there is a low probability that PHI has been compromised; the covered entity or business associate must conduct a risk assessment that considers at least each of the following factors: The nature and extent of the PHI involved, including the types of identifiers and the likelihood of re-identification.

The unauthorized person who used the PHI or to whom the disclosure was made.

Whether the PHI was actually acquired or viewed.

The extent to which the risk to the PHI has been mitigated.

If a breach occurs, how long do I have to notify the patient?

You must notify affected individuals of a breach without unreasonable delay but in no case later than 60 calendar days from the discovery of the breach, except in certain circumstances where law enforcement has requested a delay. The time period for breach notification begins when the incident is first known, not when the investigation of the incident is complete. You are expected to notify individuals as soon as reasonably possible after the covered entity takes reasonable time to investigate and collect information to be included in the notification.

Keep in mind that 60 days is the outer limit (American Health Information Management Association).

Part of this process includes notifying the MagMutual Claims Department.

What if the breach affects more 500 or more patients?

You must report breaches affecting 500 or more individuals to the Office of Civil Rights (OCR) immediately. ―Immediately‖ is interpreted to require that notification be sent to the OCR at the same time that the notification is sent to the individual.

(American Health Information Management Association) At the same time, please notify MagMutual Claims Department.

The MagMutual Risk Management Handbook

19

2. 3

DEALING WITH ANGER Frequently healthcare providers encounter an angry patient, spouse or family member. When in this type of situation, it is beneficial to practice the following: Listen Remember that anger results when one experiences a barrier to having what is wanted or expected.

Anger results from broken agreements and promises.

Anger may be expressed as a complaint or as a request.

Let the patient vent his/her anger. Do not challenge, make excuses, blame or try to stop the upset patient from talking.

Acknowledge Feelings Acknowledge that the feelings are normal, acceptable and understandable.

Remember that helplessness and fear may result in generalized anger.

Do not express fear or negative judgment about the feelings expressed.

Respond to anger by saying, ―I understand that you are upset;‖ ―I can see that you are angry about this.‖ Use the Patient‘s Own Words Do not use psychological or diagnostic terms for the feelings (hostile, paranoid, etc.).

Use words that defuse the intensity of the emotion.

Restate the patient‘s concern. (―I understand you are upset that no one answered your call for two hours.‖) Explore to Uncover the Real Issue Identify what expectation was not fulfilled.

Discover whether there is a ―hidden‖ request being made.

Explore what might be the issue beneath the verbalized complaint. (―What else is concerning you?‖)

The MagMutual Risk Management Handbook

20

Apologize Without Assigning Blame ―I am sorry that happened.‖ Offer Possible Solutions Present yourself as a solution. (―Is there anything I can do to assist you?‖) Share information that may clarify the problem.

Develop a plan to address the problem with a ―we can solve this together‖ attitude.

Involve other staff members who may listen or participate in resolving the problem.

Be willing to make adjustments (in treatment plan, bill, etc.) to assure the patient of the physician‘s concern and commitment.

Check in Later Follow up within the day to assure the problem is being resolved.

For major problems, follow up over time until the situation is resolved.

2. 4

HOW TO APOLOGIZE WITHOUT ADMITTING LIABILITY Whenever there is poor outcome, complication or adverse event during the course of medical treatment, the patient is due an explanation promptly, tactfully and with empathy and concern. This type of communication is central to the ―therapeutic alliance‖ formed by the physician-patient relationship. Some states have enacted ―Apology Statutes‖ which allow a physician or other healthcare providers to apologize or otherwise express sympathy to a patient or relative of the patient when there has been an unexpected or unanticipated outcome, without being admissible as evidence, nor considered admissions of fault.

We strongly suggest that you check with the MagMutual Risk Management or Claims Department in your state for further advice regarding Apology Statutes protection.

Many lawsuits are filed, regardless of the absence of negligence, because patients are angry and surprised over unexpected or unsatisfactory clinical outcomes. In many instances, this anger can be traced to the rapid deterioration of the physician-patient relationship during the onset and aftermath of an adverse event, particularly when physicians cannot communicate appropriately. Plaintiffs have commonly made

The MagMutual Risk Management Handbook

21

statements like: ―If my doctor had only come to me and discussed this unexpected outcome, there would be no suit;‖ or ―The doctor shut me out, and I felt abandoned, confused, almost childlike in my anguish;‖ or ―My doctor wouldn‘t tell me what was going on, so I had to find a lawyer who would.

The term ―apology‖ does not mean an admission of liability, wrongdoing or negligence, but rather an acknowledgment by the physician of regret and disappointment over the situation. However, the legal issues related to an appropriate physician response and making the best use of an apology are tricky and depend on the particular situation.

The cause of an unanticipated outcome is not always clear, so assessment of liability soon after an occurrence could often be speculative. Speculation does not help the patient to understand the outcome and could wrongly imply medical negligence. The physician should express empathy or compassion for the patient‘s situation, while not apologizing for his or her actions. Saying ―I‘m sorry for your loss (or pain)‖ is an effective way to convey the physician‘s feeling of compassion, but saying ―I‘m sorry that I did not . . .‖ can imply or admit wrongdoing.

The following communication guidelines may be useful when a physician confronts an unanticipated outcome: (1) Provide the patient or family a simple explanation of the known facts; (2) Explain the known cause of the problem as accurately as possible without speculation; (3) Minimize use of words which might wrongly imply negligence (e.g., error, mistake, accident); (4) Do not make disparaging comments about persons, products or organizations or engage in ―finger pointing;‖ (5) Do not belittle any complication.

The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) requires hospitals to disclose unanticipated outcomes in medical treatments and procedures if they seek or wish to maintain accreditation by JCAHO. Practitioners should disclose poor outcomes, complications and adverse events as a standard risk management practice.

Informed Patient Usually an unfavorable outcome or complication is the result of a known risk of the procedure and not the fault of the physician. The key to a physician‘s response to a patient‘s inquiry about such outcome or complication in these instances is making sure the patient is properly informed prior to the performance of a medical or surgical treatment or procedure.

The MagMutual Risk Management Handbook

22

The well-received physician response will arise from a doctor-patient relationship where the physician has worked at developing a solid rapport with the patient. In the event a poor outcome does occur, after having explained the major risks and complications of the procedure to the patient, there is a pre-established line of communication from which the doctor can draw a sincere expression of regret.

Maintaining Contact Many times, when a complication or injury occurs, the temptation is to become defensive and/or to separate oneself from the patient. While an explanation of a complication may not always prevent blame, failure to discuss the problem honestly and within a reasonable time will frequently ensure suspicion, blame and anger. If an explanation is not timely or if the patient has an inadequate opportunity to ask questions, the risk of an unwarranted lawsuit increases. Delay fosters the patient‘s suspicion that someone should be blamed and makes it more difficult to explain the circumstances in a way that the patient can accept. Furthermore, the patient may assume that the responsible healthcare professional fears confrontation because of feelings of guilt.

2. 5

HANDLING PATIENT COMPLAINTS Good patient relations begin the moment a patient has any contact, direct or indirect, with the medical office. Many claims are triggered by poor patient relations and communication.

Clues that a patient may sue are present long before any legal documents are drawn up. Often it is a staff member who first becomes aware of complaints that may signal an impending problem. Regardless of how minor a complaint may seem all complaints deserve a prompt, professional response.

Each office should have a formalized patient complaint policy that includes having a patient representative responsible for patient relations. The patient representative should compile and analyze all complaints to identify any trends in the complaints and act accordingly.

Other guidelines for a formalized patient complaint policy/ procedure include, but are not limited to: Listening to the patient without interrupting; Clarifying the problem and the patient‘s needs or wants; Notifying the physician and the patient representative of the complaint;

The MagMutual Risk Management Handbook

23

Responding to the complaint in a timely manner; Providing the patient with the name and telephone number of the patient representative; Documenting the patient‘s complaint, if indicated, including the people notified and the resolution; and Following up with the patient to verify the resolution of the problem.

2. 6

TERMINATING THE PHYSICIAN-PATIENT RELATIONSHIP Once the physician establishes a physician-patient relationship, he/she may not abandon the patient without the threat of potential liability.

The physician is obligated to continue treating the patient until the patient‘s condition no longer warrants it or the patient discharges the physician. The physician may also terminate the relationship by following these steps.

Wait to withdraw from caring for a patient who is in the midst of a medical crisis until the crisis is resolved.

To withdraw from a patient who needs care at the moment, risks injury to the patient and a suit for abandonment.

Verbally discharge the patient in person.

Confirm the discharge in a letter signed by the physician. The letter should include the following information: –

Summarize the relationship with the patient.

–

Establish a date for ending the relationship (usually 30 days depending on the patient‘s condition and the availability of a qualified physician).

–

Describe the patient‘s current condition.

–

Inform the patient of his/her need to select another physician.

–

Indicate whether follow-up care should be immediate.

–

Indicate prognosis if follow-up care is not obtained.

–

Inform the patient of other physicians qualified to treat him/her.

–

Tell the patient the physician will be available for emergencies or to treat acute conditions during the transition.

The MagMutual Risk Management Handbook

24

–

Inform the patient the office will provide a copy of his/her medical records to another physician upon request and with written authorization.

–

Inform the patient that the physician will consult with a new physician if requested.

Send the letter to the patient by certified mail/return receipt requested and also by regular mail. The letter may be sent by FEDEX in lieu of certified mail if there is a concern that the patient may not make the trip to the post office. Most of the time, handdelivering the letter to the patient is the best option.

Enclose an authorization form for transfer of records.

File the mail receipt with a copy of the letter.

Send a copy of the letter, if the certified letter is returned unclaimed, by regular mail and document the fact that this was done. Place the unclaimed certified letter in the patient‘s records.

Inform the staff not to schedule a new appointment after the effective termination date.

2.7

HELPING THE BEREAVED Members of the healthcare community deal with more people affected by the loss of a loved one than most others. In this difficult time, it is important that the healthcare worker provide as much support as possible to those affected. The following can help accomplish this goal: Do: Do let your genuine concern and caring show.

Do be available and listen.

Do express sympathy about what happened to their loved one and about their pain.

Do allow them to express as much grief as they are feeling at the moment and are willing to share.

Do encourage them to be patient with themselves, not to expect too much of themselves and not to impose any ―shoulds‖ on themselves.

Do allow them to talk about the loved one they have lost.

The MagMutual Risk Management Handbook

25

Do reassure them that they did everything they could, that the medical care their loved one received was the best or whatever else is true and positive about the care given their loved one.

Don‘t: Don‘t let your own sense of helplessness keep you from reaching out to a bereaved person.

Don‘t avoid them because you are uncomfortable. Being avoided adds pain to an already painful experience.

Don‘t say, ―I know how you feel.‖ Even if you‘ve lost a loved one yourself, you probably don‘t know how they feel.

Don‘t say, ―You ought to be feeling better by now,‖ or anything else that implies a judgment about their feelings.

Don‘t tell them what they should feel or do.

Don‘t change the subject when they mention their dead loved one.

Don‘t avoid mentioning the loved one‘s name out of fear of reminding them of their pain. They have not forgotten it!

Don‘t try to find something positive about the death (a moral lesson, closer family ties, etc.).

Don‘t point out that at least they have their other family members.

People are not interchangeable; they cannot replace each other.

Don‘t make any comments that in any way suggest that the care given their loved one at home, in the emergency room, hospital or anywhere else was inadequate. They are already plagued by feelings of doubt and guilt without help from anyone else.

Don‘t say they can always have another child/spouse. Even if they wanted to and could, another child/ spouse would not replace the one they have lost.

Don‘t suggest that they should be grateful for their other family members. Grief over the loss of one does not discount love and appreciation for those living.

The MagMutual Risk Management Handbook

26

2.8.

NOTIFYING PATIENTS OF TEST RESULTS Each patient should be notified of his/her test results, whether normal or abnormal in a timely manner it is acceptable to ask a patient to call back for results; however, it is the physician‘s responsibility to communicate all test results to the patient. Unless the standard of care requires more immediate notification, a good rule of thumb is to notify the patient of lab or diagnostic results within two weeks. The dates that the lab results are received and attempts to contact the patient must be documented in the patient‘s medical record.

Asking a patient to call for his/her test results is a good ―failsafe‖ technique, but it is not the patient‘s responsibility. Many practices will use a postcard to communicate test results. This is acceptable as long as measures are taken to protect the confidentiality of the information, such as folding and sealing the postcard. It is imperative that all abnormal or equivocal test results be reported to a patient. Communication of test results to a patient should be documented to his/her medical record with the date and time. The failure to report a normal test result will probably not result in a lawsuit; however, it may help to alleviate a stressful situation.

Establish a tracking system to ensure that all test results are communicated to patients.

This system could be in the form of a log that would include the patient‘s name, test and date ordered, date results received and date patient was notified of results.

Each office should have a written policy and procedure for its tracking system. It does not matter what kind of system is put in place, as long as the end result is patient notification and the proper follow-up.

2.9

TRACKING SYSTEM FOR DIAGNOSTIC REPORTS All medical office practices should have a system in place to assure diagnostic reports are received and acted upon in a timely manner.

Lab or other diagnostic reports may be lost in the hospital or outside lab, placed in the wrong chart or filed prior to the physician reviewing them. This can lead to delayed treatment resulting in patient injury.

We recommend setting up a tracking system. Suggestions for ways to implement such a system follow: Communicate the importance of a tracking system to staff members. Ask for their input and expertise in its development.

The MagMutual Risk Management Handbook

27

Keep copies of the requisition slips in the patient‘s file and medical office lab.

Keep a log of all tests sent out, including patient‘s name, date sent to the lab, date received and initials of the person logging in the report. This is particularly important for PAP smears and mammograms. The log should be reviewed on a daily basis.

The above methods prevent the test from being lost without someone realizing it.

For sample Diagnostic Test Tracking logs and forms, go to www.magmutual.com and find the forms in the Form section under the Library tab.

In-office labs: Keep chronological copies of all lab results for at least 10 years It is imperative that all abnormal or equivocal test results are reported to the patient and documented in the record. Prompt reporting of normal test results helps to alleviate a stressful situation for patients.

Tell the patient he/she should receive a report. Do not say, ―If you don‘t hear from me, it‘s okay.‖ Ask the patient to call the office for a report if the office does not call in a reasonable amount of time.

Stress to staff members the importance of putting the lab report on the proper patient‘s chart.

Review and initial all reports prior to filing.

Act promptly on any positive diagnostic test.

Each office filing system should meet its needs. Some clinics use different colored slips (printed in duplicate) for different tests. As with any part of the medical record, never send the original lab result to another physician, the patient or an attorney. Send copies only.

By following the above guidelines, the risk of a professional liability lawsuit involving missed or delayed diagnoses will decrease, and patient safety will be enhanced.

For more information about how to develop tracking systems for the medical office practice, and to obtain a free follow-up tool kit, contact MagMutual Risk Management at 800-282-4882.

The MagMutual Risk Management Handbook

28

2.10

PATIENT EDUCATION Studies have shown that patients remember only seven percent to 30 percent of what is verbally communicated to them. Frequently, patients are thinking of other things when a healthcare provider is talking to them, such as, ―How am I going to pay this bill?‖ or ―Can I take time off work to have this surgery?‖ Providing patients with educational materials regarding their disease or illness and providing written instructions prior to and after a procedure or surgery can help prevent many misunderstandings and errors.

A brief note should be entered into the patient‘s chart when verbal instructions are given, written educational material is provided or the patient views a film while in the office. This note should include what information was covered, the title of the handout or film, the patient‘s understanding of what was discussed and any return demonstrations.

For example, ―Patient viewed the film on ‗Newly Diagnosed Diabetic‘ and was provided with the handout ‗How to Give Insulin Injections.‘ Patient verbalized understanding and gave a return demonstration on insulin injections.‖ When handouts or instruction sheets are used by the physician or office staff, be sure to include an implementation date on them as well as a revision date should the information be updated. A copy of any written instructions, booklets or films provided to patients should be retained for at least 10 years in the event they are needed in the defense of a professional liability lawsuit.

Taking time to provide patient education will increase satisfaction and improve compliance.

TO ENCOURAGE PATIENTS TO TAKE AN ACTIVE ROLE IN THEIR HEALTHCARE, THE JOINT COMMISSION (TJC) DEVELOPED AN AWARD WINNING SPEAK UP™ PROGRAM. THE PROGRAM FEATURES FREE BROCHURES, POSTERS, AND VIDEOS. MEDICAL PRACTICES ARE ENCOURAGED TO EXPLORE THE IMPLEMENTING THIS PROGRAM. FOR MORE INFORMATION ABOUT THIS PROGRAM CONTACT MAGMUTUAL RISK MANAGEMENT OR GO TO THE JOINT COMMISSION‘S WEB SITE: HTTP://WWW.JOINTCOMMISSION.ORG/FACTS_ABOUT_SPEAK_UP_INITIATIVES/

2.11

PATIENT INFORMATION BOOKLETS A good patient information booklet saves office time and creates goodwill. Such a booklet will not replace the Notice of Privacy Practices physicians must provide to patients under the HIPAA privacy rules, but may be used in conjunction with the Notice. Booklets can provide

The MagMutual Risk Management Handbook

29

written guidelines for staff and patients and can reduce the number of incoming telephone calls. There is no one correct way to put the booklet together. Each office is the best judge of what kind of format suits the physician‘s character, specialty and practice.

The following guidelines should help. Remember to keep the topics short and direct. The booklet is merely introducing the physician‘s practice. The staff and patient care will complete the picture.

Introduce the physician and staff and give the credentials or general functions of each person.

Encourage complete openness and honesty with the physician and staff to facilitate quality healthcare. Assure the patient that communications are confidential.

Describe the physical layout of the office and parking facilities.

Indicate if the patient should allow extra time to find a parking space and whether or not the office validates parking receipts.

Tell the patient about any special amenities such as childcare, coffee, tea or soft drinks.

Describe the type of practice and its benefits. If the physician sees only referrals, say so.

For a group practice, explain that the patient will receive medical care even when his/her physician is absent.

Give the office hours, holidays, after-hours and weekend coverage.

Discuss the policy on emergencies.

Be explicit about appointments. Let patients know how far in advance they should call, and provide the office policy on ―walk-ins?‖ Tell patients to cancel appointments as far in advance as possible and whether or not the office charges for missed appointments.

Encourage patients to describe their problems to the staff when making an appointment. Explain that this is to facilitate convenient scheduling for both the office and patients.

Explain the importance of being on time so patients will not experience long waiting periods. However, if your office has a history of being late for appointments, do not encourage patients to be prompt. This only creates hostilities when patients comply and the office is not ready for patients at the appointed time.

Explain telephone procedures so patients know what to expect when calling about a medical condition.

The MagMutual Risk Management Handbook

30

Explain the method of payment most preferred by the office (monthly billing, payment at the time of visit, etc.). Talk about the patient‘s responsibility to pay for services rendered and overdue bills.

Describe the office‘s policies on handling insurance forms (who is ultimately responsible for payment, and who will file all claims). If there is a fee for this service, list the fee.

Collect staff suggestions since employees are familiar with common patient questions/problems.

Personalize the content with the ―you‖ form of address.

Use the largest typeface possible to improve readability and design a pleasing layout.

Include a map and directions.

Budget for a six-month supply so revisions can be made frequently.

Give the booklet as a reference guide to all patients, both established and new.

Take the patient‘s point of view when putting the booklet together.

Thank the patient for choosing the physician‘s office.

Other Suggested Topics: Charges for telephone consultations Notification of lab results Answering service Prescription refills Call backs Whether the office has special times for scheduling appointments Emergency phone number and what procedure to follow.

These suggestions can help an office get started in producing an information booklet suitable for the practice.

Some offices have found it helpful to prepare a patient information letter outlining selected information.

Other practices have created attractive brochures along the same lines. The objective is to create an informational tool that represents the philosophy of the office.

Through good communication, the office can establish an improved physician/patient relationship and enjoy a smoother-running practice,

The MagMutual Risk Management Handbook

31

more-effective staff and happier patients. Patients will not only be satisfied with their medical care but also with the physician‘s thoughtfulness and management abilities.

2.12

SAMPLE PATIENT INFORMATION BOOKLET XYZ MEDICAL GROUP INFORMATION BOOKLET Practice location; address (es) and phone number(s) We are a group of medical specialists with nurses, technicians and support personnel treating diseases and injuries to the musculoskeletal system.

Orthopedics is a specialty within medicine concerned with diagnosis and treatment of diseases and injuries to bones, joints, ligaments, nerves and muscles. After our orthopedic evaluation, we will seek consultation with another medical doctor if we feel it is appropriate.

Our goals are to provide you with excellent orthopedic care and treat you with compassion and courtesy. We thank you for your trust and confidence.

Why We Practice As Associates We feel that a group practice is beneficial to you and us. In this way we can: Provide orthopedic coverage to you 24 hours a day.

Have the opportunity to discuss unusual or complicated cases among ourselves to provide you with the advantage of group consultation.

Assure you that if your doctor is away, the other doctors have access to your records. The on-call doctor is as interested in your well-being as your own personal orthopedic doctor.

Take the necessary time off for continued postgraduate medical education to keep up with the latest developments in the diagnosis and treatment of problems in our field.

Have time to be with our families.

Professional Qualifications If applicable, we are all board certified. To be board certified, an orthopedist must have completed college, four years of medical school,

The MagMutual Risk Management Handbook

32

five years of postgraduate study (internship and residency), practiced as an orthopedic surgeon for two years and passed a certifying exam given by the American Board of Orthopedic Surgeons. A complete professional as well as personal history on each associate is available on request.

Referrals The physician who referred you will promptly receive a letter outlining the results of your evaluation and treatment plan.

Appointments When making an appointment, you may request the doctor of your choice. Your appointment will be an approximate time. Every effort is made to keep your waiting time to a minimum. Emergencies do occur and operations may take longer than anticipated; hence, delays are unpreventable. When this happens, your patience is appreciated.

Your appointment time is approximately 20 minutes before you are scheduled to see the doctor. This is to allow for necessary administrative time.

Appointments for Minors Patients under the age of 18 who are not married or emancipated and who seek medical treatment for problems unrelated to pregnancy, contraception or sexually transmitted disease must have consent of a parent, guardian or custodian. It is best if the parent, guardian or custodian accompanies the minor patient to the appointment.

Canceling Appointments If you are unable to keep an appointment, call as far in advance as possible.

Because of emergencies, we may reschedule your appointment. We regret that this may happen without advance notice.

Unscheduled Visits If you become acutely ill, we will work you into our routine schedule; however, if your illness is of chronic (long-standing) nature, it is expected that you will make an appointment.

The MagMutual Risk Management Handbook

33

After-Hours Telephone Calls Calls will be answered 24 hours a day by the staff or the answering service. If a return call is not received within 45 minutes, please notify the answering service.

Emergencies: Call For emergencies occurring during regular office hours, 7:30 a.m. to 5:00 p.m., phone ahead if possible for instructions or go directly to our office at (address). During the hours of 5:00 p.m. to 7:30 a.m., go to the emergency room at ABC Medical Center and request that we be called. One of us will either come to the emergency room to see you or, in some cases, ask the emergency room doctor to examine you, take the necessary x-rays and contact us regarding treatment.

Prescription Refills New medications will not be prescribed over the telephone. The best method of having a prescription refilled is to have your pharmacist call our office. Normally, refills are issued only when you have been seen by your doctor within the last three (3) months. If you call, please have the pharmacy telephone number, the name, dosage and dosage schedule of the medication available when you call.

Fees Fees are based on reasonable and customary charges for this area.

The fee for the first visit or a new problem is higher than a routine follow-up visit, because more time is required.

An estimated fee for any procedure will be given on request by our business office. If you are unable to pay in full at the time of service, you should pay your balance within 30 days. If your account is covered by insurance, payment in full is expected within 60 days.

Past-Due Accounts If you have a financial problem, we will understand. Contact our Accounts Control or Collection Clerks. Time will be extended for payment which is fair to you and the clinic. If you do not make these arrangements, your account is past due ninety (90) days after service.

The MagMutual Risk Management Handbook

34

Liability Payment When your medical treatment is the result of an injury involving a third party, any delayed liability action between you and the third party is not a valid reason for delaying payment.

Workers‘ Compensation All patients receiving treatment under Workers‘ Compensation must have employer verification. We will provide your employer with the necessary medical and financial information.

Hospital and Major Medical Insurance You or your insurance company will be provided with the medical and financial information necessary to process your claim(s). There is no charge for this service.

Disability Insurance Forms There is no charge for this service.

Medicare or CHAMPUS Assignment of benefits is accepted from Medicare or CHAMPUS recipients. You pay the deductible and coinsurance balance.

Indigent Care We work with the state of Georgia to provide medical treatment for crippled children, cerebral palsy patients and government programs monitored by the Social Security Administration, including Medicaid.

Hospital Affiliation We are on the staff of ABC Medical Center. This excellent hospital is located near our office.

We strive to give you the best medical care, while at the same time treating you with human kindness. Our ultimate goal is to treat you as we would want to be treated.

If you feel that we have failed you in any way, please let your doctor or our Clinic Director know about it immediately.

We are honored that you have chosen us. Again, thank you for your trust and confidence.

The MagMutual Risk Management Handbook

35

2.13

PATIENT SATISFACTION SURVEY Patient satisfaction survey is a way of assessing how patients feel about the care they receive in the office. Even though a physician may believe he/she is providing quality care, his/her patients may feel otherwise.

To obtain feedback from the patients: Develop a survey questionnaire that meets the office‘s needs.

Place a clearly marked receptacle for the surveys near the exit or give the patient a self-addressed postage-paid envelope.

Evaluate the returns.

Make appropriate changes based on the responses.

If the office elects to use a patient survey, conduct the survey for one week twice a year. This will help identify possible problem areas in the office and provide an opportunity to correct them.

After the surveys are analyzed, post the results and indicate the resolutions to the problems. This will show concern and the importance of patients‘ suggestions.

2.14

IMPORTANCE OF MAXIMIZING PATIENT RAPPORT Have you ever thought you might need an attitude adjustment? When it comes to your interaction with patients, your attitude may be the single difference between being sued and not being sued. Studies have identified similarities in those physicians who have not been sued.

Here are some tips.

Show care and concern for your patient and his/her family. Irritated patients and caregivers may be more likely to initiate a malpractice suit.

Always return telephone calls promptly and document the conversation.

Listen carefully to the patient and solicit questions rather than stifle them. Allow the patient to make informed decisions without coercion.

Thoroughly educate the patient about treatment plans, benefits, risks and alternatives.

The MagMutual Risk Management Handbook

36

Make sure the patient understands all charges billed to his/her account.

Exchange information appropriately with all other professionals involved in the patient‘s care.

Keep the patient‘s chart legible and current. Carefully document recommendations and prescriptions (including sample medications) as well as any issues of noncompliance or refusal to accept treatment.

Remember, patients who like their doctors are less likely to sue them.

2. 15

OFFICE POLICY AND PROCEDURE MANUAL Employees need to be able to refer to written guidelines when situations occur that they do not know how to handle. These guidelines give employees some reasonable knowledge of how to handle different types of patients, routine medical situations, administrative tasks, office safety and emergency situations.

There is no set format for a policy and procedure manual; however, there are a few points to keep in mind.

The manual should be straightforward and easy to understand.

The policies should state what is actually practiced, not what sounds good.

Each policy should contain an effective date and revision date.

Policies should be updated regularly, and a copy of any revised policy should be retained for 10 years.

The manual should address issues confronted in the day-to-day operation of the practice.

Suggested Topics for Policy Manual Personnel policies, including Job description Personal use of practice property Dress code Working hours Sick leave Vacation, holidays Continuing education Leave of absence Confidentiality

The MagMutual Risk Management Handbook

37

Benefits Performance appraisal Probation, resignation and dismissal Disciplinary procedure Office policies, including Health information practices Release of information Documentation Telephone advice Telephone technique Follow-up on abnormal lab results Scheduling Billing/collections Referrals/consultations Terminating the physician-patient relationship Patient education/instructions Hazardous waste management Equipment management Claims/potential claims reporting procedure Patient complaint procedure Clinical procedures, including Treatment protocols Lab tests Safety/infection control Emergencies, including Emergency numbers (911, poison control, police, fire) Staff members‘ responsibilities

2. 16

TELEPHONE ADVICE The telephone, while an essential tool of communication, can also be a dangerous one. Often, staff members are pressured by patients to answer questions such as, ―Can‘t you tell me how to reduce the swelling in my arm by myself?‖ when the patient does not want to schedule an appointment. Staff should be instructed not to give medical advice or information that could be construed as medical advice over the telephone. An appropriate response would be, ―I am not a doctor and cannot give you medical advice. For the physician to make an accurate diagnosis and prescribe the appropriate treatment, it would be best for you to come into the office to be seen.‖ Written guidelines detailing what type of advice staff members can give over the telephone should be developed.

The MagMutual Risk Management Handbook

38

These guidelines should be placed in the policy and procedure manual as a resource for staff and updated as necessary.

For a sample Telephone Consultation form, go to: www.MagMutual.com, and find the form in the Forms Section under the Library tab.

2.17

TELEPHONE TECHNIQUES FOR THE OFFICE PERSONNEL A patient usually receives his/her first impression of the practice when he/she calls for an appointment. In these first few minutes of contact, the patient begins to form an opinion about the type of service rendered and the professionalism of the office staff. If the first impression is poor, staff will spend the rest of their time with that patient undoing the effect. If the patient has several poor contacts, it is likely that the office will never be able to counteract the negative results. The telephone gives a first impression which can help or hinder in establishing good patient rapport. Each healthcare provider should take this opportunity to create a positive image.

Since so much patient contact takes place by telephone, careful adherence to clear guidelines will ease patient flow in a busy day.

Answer calls as quickly as possible—at least by the third ring.

Smile when saying, ―Good morning, Dr. Brown‘s office. Sarah Smith speaking. May I help you?‖ No magic formula exists, but identifying the office and the person speaking while projecting warmth is a good start.

When placing calls on hold, ask the caller first if he/she would please hold. Wait for a reply before pushing the hold button. Do not put a call on hold for more than one minute without checking back with the caller to see if he/she can continue to hold. If more time is needed, take a message to call the patient back. Remember to promptly return all calls.

Keep office lines clear. Conversations should be short and to the point. Multiple attempts by a patient to reach the office only to be greeted by a busy signal can cause frustration, which is often unknown to the office. When the caller finally gets through, he/she may already be irate.

Treat irate callers with unfailing politeness. A calm, friendly manner will defuse the anger and make the patient easier to deal with. A patient is usually preoccupied with his or her own condition and is often apprehensive.

The MagMutual Risk Management Handbook

39

Each healthcare provider should put himself/herself in the patient‘s shoes for a moment and realize that the medical world is an unknown area for most patients. Never become angry with the patient.

Screen telephone calls to identify those that can be directed to others such as calls put through immediately to the physician (emergencies, physicians and specific callers), return calls (prescriptions, refills and test results) and calls handled by staff (nurses, administrators and billing).

Protect confidentiality when talking over the telephone. Be sure that other patients do not overhear conversations with callers.

Do not release medical information over the telephone unless you have written authorization by the patient or his/her legal representative. If it is uncertain that the caller is the person authorized to receive the medical information, tell him/her to provide a written authorization signed by the patient or his/her legal representative.

When calling a physician‘s office for an appointment for your patient, state your physician‘s name and phone number, the patient‘s name and phone number, the reason for the call and the degree of urgency. Also state whether the patient is being sent for consultation or referral. Document in the patient‘s chart the time, date and person who received the call. Inform whomever you are calling that you wish to be notified if the patient does not keep the appointment. If this occurs, be sure to call it to the attention of your physician and enter the information in the patient‘s chart.

When the physician is away from the office, he or she must still document all telephone communications involving patient care. A telephone record pad with adhesive backing can be carried by the physician for this purpose. This documentation may then be placed in the appropriate record in a timely manner upon their return.

Be sure to check on the office‘s answering service. Call periodically to see how patients are treated. An office‘s answering service reflects the commitment to care just as much as the rest of the staff. Tell the answering service what the office requires to promote professional courtesy. If the service cannot comply, find one that can.

Communication is what we say, how we say it and how well we listen.

The MagMutual Risk Management Handbook

40

When office personnel are communicating with a patient by telephone, the patient cannot see the person and can only rely on the tone of voice used.

It is extremely important that telephone communications be treated carefully since office-patient rapport is established and maintained through projecting a responsive and caring attitude. Office personnel should always consider the patient perspective when communicating by telephone and in any other patient-office communications.

For sample Referral Request, Patient No Show and Referral Tracking Log go to www. MagMutual.com and search for them in the Forms Section under the Library tab.

2. 18

ANSWERING SERVICES When the physician‘s office is closed and calls are accepted by an answering service, the service should immediately tell the caller he/she is speaking to the answering service and not to the physician‘s office. If not told, patients may be upset to learn, after they have explained their confidential problems that they are speaking with someone other than the physician‘s staff. The answering service should have instructions from the physician about what to ask callers and what to tell them if they have an emergency.

A physician‘s answering service should be as courteous to callers as the office‘s employees are. The physician‘s and staff‘s rapport with patients can be easily diminished by an insensitive or rude answering service. If the answering service operator has to interrupt a caller several times to answer other calls or does not answer a call within five rings, the service may be too busy. A periodic check by the doctor or office manager into the answering service‘s efficiency, courtesy to callers and the length of time callers are placed on hold will help to identify potential problems before they become offensive to patients.

2. 19

ANSWERING MACHINES If an answering machine is used in the office, we suggest taking the following steps to minimize liability and help ensure patient satisfaction.

Inform new patients that when the physician is unavailable, telephone calls will be handled by an answering machine.

The MagMutual Risk Management Handbook

41

When treating a patient whose medical problem may involve complications, provide the patient with written instructions in case the complications occur while the physician is unavailable and the office‘s answering machine has been activated.

When prescribing a new medication to a patient, provide written instructions on how to recognize serious side effects that may require medical attention. Let all of these patients know where alternative treatment facilities exist. This will allow patients to seek medical attention immediately instead of waiting for a return telephone call after the office has retrieved its messages.

Be certain the recorded message on the answering machine is clear, distinct and includes the time the office will reopen. Direct callers to an emergency room and tell them how to reach an ambulance service if they feel their condition needs immediate attention.

If the answering machine takes messages, give clear directions to the callers to leave their name, date, time and a phone number.

Tell them when they should expect a return phone call. Make sure to instruct them that if their condition worsens they should seek help from an emergency room.

Make certain the machine can accommodate a reasonable number of lengthy calls and is not a model that rewinds to record new messages over old ones. In addition, retrieve answering machine messages in a timely manner.

Change tapes periodically.

Expect some patient dissatisfaction with not being able to reach the physician.

2. 20

PROVIDING INTERPRETERS FOR HEARING IMPAIRED AND LIMITED ENGLISH PROFICIENT PATIENTS Physicians treating patients who have hearing impairments or who are limited in their Proficiency with the English language may be responsible for providing interpreters for such patients in the medical office at no cost to the patients. These requirements often surprise physicians who note that the cost of an interpreter may exceed the amount billed to the patient for the office visit. Whether a patient is entitled to an interpreter under these requirements, or whether other means of communication will be appropriate, is heavily fact dependent.

The MagMutual Risk Management Handbook

42

This article will briefly analyze communication requirements that apply to physicians treating deaf or hearing impaired and Limited English Proficient ("LEP") persons.

Deaf or Hearing Impaired Patients Section 504 of The Rehabilitation Act of 1973, implemented by the Department of Health and Human Services ("HHS"), applies to all physicians who receive federal financial assistance and have 15 or more employees. Section 504 requires physicians to provide free auxiliary aids and services, including interpreters, notes, other written materials, and telecommunication devices if necessary for effective communication with their deaf or hearing impaired patients (and their companions). The requirements of Section 504 are more onerous than the ADA's requirements. Unlike the ADA, Section 504 has no "undue burden" exception. Therefore, physicians are required to provide the appropriate free auxiliary aid or service to patients and their companions even if the cost of the aid or service exceeds the payment the physician will receive for treatment.

If physicians or employees recognize or have any reason to believe a patient, relative, or companion of a patient is deaf or hearing impaired, the physician must inform the patient that appropriate auxiliary aids and services will be provided, free of charge, when necessary for effective communication. The physician must inform the deaf or hearing impaired patient that free auxiliary aids and services are available even if the patient does not request any aid.

When a patient is not deaf or hearing impaired, auxiliary aids and services still have to be provided, when necessary for effective communication, if the patient's companion is deaf or hearing impaired. HHS defines a companion as: 1) a person whom the patient indicates should communicate with the physician about the patient, participate in any treatment decision, play a role in communicating the patient's needs, condition, history or symptoms to the physician, or help the patient act on the information, advice, or instructions provided by the physician; 2) a person legally authorized to make health care decisions on behalf of the patient; or 3) another person the physician would ordinarily and regularly communicate with concerning the patient's medical condition.

The physician must consult with the patient to determine the most appropriate auxiliary aid or service to use. This communication assessment should be done during the first appointment or when the physician becomes aware that the patient or companion is deaf or hearing impaired. HHS guidelines state that the following should be considered when determining the appropriate auxiliary aid or service, if any: 1) the nature, length and importance of the communication at issue; 2) the individual's communication skills and knowledge;

The MagMutual Risk Management Handbook

43

3) the patient's health status or changes thereto; 4) the patient's and/or companion's preference or stated need for an interpreter; and 5) the reasonably foreseeable health care activities of the patient.

With routine office matters, a pen and notepad may suffice. With more complex matters, use of a qualified interpreter may be required.

Physicians may contract with interpreters from outside interpreter services, hire staff members capable of interpreting for deaf or hearing impaired patients and companions, or utilize friends and family of the patient. However, a family member or friend may provide interpretive assistance only if the patient or companion agrees in writing to the use of that person and use of that person is appropriate under the circumstances, giving consideration to the patient's privacy issues. HHS regulations do allow for interpreting by family members and friends in time-sensitive, life-threatening or medically urgent situations.

It is very important to document all discussions with patients or companions regarding auxiliary aids and services. If an auxiliary aid or service is provided, make a note in the patient's chart. Most importantly, if, after a communication assessment is performed, the physician determines that auxiliary aids and services are not needed for effective communication, document in the patient's chart the reasons why the auxiliary aid or service is being denied.

It is clear that engaging in communication with deaf or hearing impaired patients can be accomplished in more than one way. The challenge is finding the most effective method of communicating with the patient considering all circumstances involved. HHS requires a lot from physicians who treat deaf or hearing impaired patients. However, physicians can comply more easily with the law by having set policy and procedures that they use consistently with each deaf or hearing impaired patient.

Limited English Proficient (LEP) Patients In August 2003, HHS issued to physicians and other recipients of HHS funding revised Guidance regarding Title VI of the Civil Rights Act of 1964 and the prohibition against national origin discrimination affecting LEP persons. HHS intended the Guidance to be an analytical framework for physicians and other recipients of HHS funding to use when determining how best to comply with statutory and regulatory obligations to provide language services to LEP persons.

The first question most physicians ask is whether the requirements set forth in this HHS Guidance apply to them. The requirements apply to any person receiving funds from HHS, including physicians who participate in Medicare Part A, those who participate in federally funded clinical trials and certain other patient categories.

The MagMutual Risk Management Handbook

44

Physicians enrolled only in Medicare Part B and who do not otherwise receive federal funds would not be subject to these LEP requirements.

The Guidance notes that persons who do not speak English as their primary language and who have a limited ability to read, write, speak or understand English may be LEP persons and may be eligible to receive language assistance with respect to a medical office visit.

How do physicians determine the extent of their responsibilities to LEP persons? HHS suggests physicians conduct an LEP assessment of their practice, to determine: (1) How many LEP patients they are likely to see; (2) How often they are likely to see LEP patients; (3) The importance and urgency of the medical care that is typically provided to their patients; and (4) The resources available to the medical office to pay for various language assistance programs.

Some physicians may see so few LEP patients in a year that a language assistance program would not be required. There is apparently no magic number of LEP patients that triggers the obligation to provide language assistance, but generally speaking, the more LEP patients a physician is likely to see, the greater the physician‘s obligation in this regard. If application of the four-factor test indicates that the physician must provide interpretation services, then the physician should advise the LEP patient that he or she has the option of having an interpreter provided at no charge, or of using his or her own interpreter. According to HHS, the physician would be obligated to pay for interpretation services even if the bill for those services exceeds the amount the physician will receive for rendering medical services to the LEP patient. Physicians may meet their obligations by employing bi-lingual staff, by contracting with interpreters to perform services either live or by telephone, by using community volunteers and by having certain vital documents (e.g., consent forms) translated into other languages. Reliance on family members or friends as interpreters at the patient‘s request is permitted, but generally discouraged by HHS except in cases of emergency, because it can be difficult to determine the informal interpreter‘s competence and the factual circumstances at issue may make it inappropriate for someone close to the patient to be involved (e.g., child abuse or sexual assault). Physicians generally cannot require LEP persons to use family or friends as interpreters. Translation of written documents (e.g., consent forms) from English to another language may be appropriate in certain cases as well.

With regard to LEP compliance, the first thing a physician should do is to complete the four-factor test discussed above. If the answers to that test suggest the physician would be required to develop a languageassistance plan, the next task would be for the physician to develop a workable plan that includes the following five steps recommended by

The MagMutual Risk Management Handbook

45

HHS: (1) Set forth procedures to identify LEP persons who need language assistance; (2) Have a mechanism for identifying possible language assistance measures for an LEP patient, i.e., how staff can obtain services or respond to LEP callers; (3) Train staff; (4) Notify LEP persons of available LEP services, e.g., posting signs in the office; and (5) Monitor and update the LEP plan as necessary.

It is clear from the Guidance that no one-size-fits-all strategy applies.

Whether physicians have an obligation to provide language services to LEP persons and what language services would be required are highly dependent upon the facts. The language services required of a smalltown solo physician where virtually none of the population speaks a language other than English would be different from a solo physician in a county that is heavily populated by immigrants who speak little or no English. Similarly, language services required to be employed by a solo family physician in a metropolitan area would likely be different from those required of a large multi-specialty clinic in the same area.

For more information on LEP requirements, see http://www.hhs.gov/ocr/lep/ and http://www.lep.gov/.

SECTION 3 – MEDICAL RECORDS 3.1

MEDICAL RECORDS Medical record documentation is required to record pertinent facts, findings and observations about an individual‘s health history— including past and present illnesses, examinations, tests, treatments and outcomes. The medical record chronologically documents the care of the patient and is an important element contributing to highquality care. The medical record facilitates: The ability of the physician and other healthcare professionals to evaluate and plan the patient‘s immediate treatment and to monitor his/her healthcare over time.

Communication and continuity of care among physicians and other healthcare professionals involved in the patient‘s care.

Accurate and timely health insurance claims review and payment.

Appropriate utilization review and quality of care evaluations.

Collection of data that may be useful for research and education.

The MagMutual Risk Management Handbook

46

An appropriately documented medical record can reduce many of the hassles associated with claims processing and may serve as a legal document to verify the care provided, if necessary.

The medical record is confidential. Under the Health Insurance Portability and Accountability Act (HIPAA), the medical record is referred to as ―protected health information.‖ The information is private, should remain secure and should not be made public. The medical record belongs to the physician, but the information belongs to the patient.

The following are the key elements of a good medical record. A sample medical records checklist that can be used in your office is shown below.

Uniform Records Medical records should be uniform and may be maintained, received, transmitted and stored as electronic records (O.C.G.A. § 31-33-8). Inserting dividers for lab reports, X-rays, progress notes, etc. and using a problem list is an excellent way to structure charts in a format that organizes the record for easy scanning by all healthcare professionals who subsequently use the chart. A sample problem list and a sample medication record are shown below.

Authentication Every entry in the health record, whether in paper or electronic form, should be authenticated by the author and should not be signed by someone other than the author. Signing off on entries in the medical record is essential.

Read everything you dictate, write and sign.

Develop an office sign-off policy.

The Federal Regulations/Interpretive Guidelines for Hospitals (42 CFR 482.24(c) (1) (I)) require the author of a medical record entry to authenticate his or her entry. The interpretive guidelines specifically identify unacceptable authentication: ―failure to disapprove an entry within a specific time period is not acceptable as authentication. Autoauthentication, in which a physician or other practitioner authenticates a report before transcription, is not consistent with the requirements.

There should be a method of determining that the practitioner did, in fact, authenticate the document after it was transcribed.‖ The ―Dictated But Not Read‖ stamp is an unacceptable method of authentication. Many physicians continue to use these stamps with false reassurance, unaware of the credibility problem and liability exposure that accompany the practice.

The MagMutual Risk Management Handbook

47

Secure Pages Secure all pages of the record in chronological order with fasteners to prevent pages from being lost.

Organization Organize records for easy and accurate retrieval. Whatever system is used, it should be logical and clear to all staff members and physicians (active vs. inactive patients; color coding for chronic problems or frequent diagnoses, etc.).

Timeliness Make all entries in the record, whether written or dictated, contemporaneously. Include the date of the exam or contact. The greater the time lapse between the exam and the entry, the less credible the medical record becomes.

Legible Records Records must be legible. Healthcare professionals with illegible handwriting should dictate their notes. This will help to avoid misinterpretations resulting in improper treatment.

Dictated Records Dictated notes must be proofread and signed. The statement ―dictated but not read‖ does not relieve the physician from responsibility for what was transcribed. At best, the statement alerts another healthcare professional that the note has not been proofed and may not be correct.

Accurate Records It is important to record all information in objective and concise terms.

Never include extraneous information or subjective assessments of the patient, such as ―this patient is a jerk.‖ Include direct quotations from the patient. However, reduce the essential information to the least possible number of words.

Corrections Never improperly or unlawfully alter a medical record. If an error has been made, draw a single line through the inaccurate entry and enter the necessary correction. Date, time and initial the correction in the margin. It is also acceptable to make an addendum to a medical record. It should be made after the last entry noting the current date and time, and both entries should be cross-referenced. A record that appears to have been altered implies that a cover-up has occurred.

Disagreeing If you disagree with something written in the record by another person, include an objective explanation for your opinion.

The MagMutual Risk Management Handbook

48

Patient Telephone Calls Document all patient telephone calls in the medical record. It is recommended that a patient phone call pad be used when the physician is away from the office and the medical record is not available so notes regarding any prescriptions or medical advice given over the telephone can be recorded. Sample patient phone call records are shown below in this section and can be obtained by calling MAG Mutual‘s Risk Management department. For more information on telephone techniques, see Communications, Section 2.

Conversations Address and document all patient/family worries or concerns in the patient record. Record the source of the information, if other than the patient. Always document information disclosed during the informed consent process. This will reinforce the signed informed consent form.

Potential Complications Document all known material risks of the procedure or treatment that is being considered. Proving negligence is difficult if the record shows that the patient‘s physician had prior knowledge that a complication may occur and did not discuss such complication with his or her patient.

3.2

ABBREVIATIONS Healthcare providers frequently use abbreviations when documenting in the medical record. Guidelines to follow regarding the use of abbreviations include: Using abbreviations easily recognized by all healthcare providers.

Avoiding the use of ambiguous abbreviations or abbreviations known only to yourself or a few others.

Developing a list of approved abbreviations for use in the medical office which should be consistent with abbreviations used in the hospital(s) with which the physician(s) has privileges.

3.3

RECORD RETENTION How long medical records must be kept is determined by the potential use of the record and specific legal requirements. Unless state statues require that medical records be retained for a longer period of time, MagMutual requests that our policyholders retain patients‘ medical

The MagMutual Risk Management Handbook

49

record for 10 years from the date of the last patient visit or medical record entry. This includes medical records of deceased patients.

Otherwise, medical records should be kept indefinitely or until the applicable statute of limitations or repose expires for situations: With adverse or less than desirable outcomes When patients are unhappy with results Any time a patient threatens or files a lawsuit

3.4

RETIREMENT OF RECORDS It is best to keep all medical records, office and hospital, as long as possible, even if this requires special storage arrangements. In addition, the physician who is retiring should never give the original medical record to the patient or to anyone else.

If a physician retires, moves out of state or closes his/her practice and is transferring his/her records to another physician, a written agreement should stipulate that the physician still owns the records and the custodian of the records will not: Destroy the records without permission Alter the media (hard copy to microfilm) Transfer the records to another physician In the alternative, the agreement should at a minimum allow the retiree access to the records as necessary (e.g. for the defense of a claim.)

The physician, or the physician‘s estate, should also be able to obtain the original record in the event of a medical professional liability lawsuit. For information on closing the medical practice, see Practice Management Section of this Handbook.

3.5

DESTRUCTION OF RECORDS It is suggested that the physician review office records before allowing them to be destroyed to be sure he/she is comfortable that the record will not be required for patient care or to defend a medical professional liability lawsuit.

The MagMutual Risk Management Handbook

50

Records should be destroyed either by shredding or incineration. Special care should be taken to ensure patient confidentiality is maintained throughout the destruction process. Under HIPAA, the practice should initiate a business associate agreement with the company hired to destroy the medical records. A manifest or list of the medical records which were destroyed should be developed and maintained permanently.

As noted previously, the original record should not be given to the patient. In the event the patient needs a record, a copy should be provided, and the physician should retain the original in accordance with the guidelines set forth in the previous section concerning ―Record Retention.‖ Never give the patient the original record; it should be destroyed. Only give the patient a copy to prevent changes in the record that could be alleged the physician made.

3. 6

RELEASE OF CONFIDENTIAL INFORMATION Patient medical information is confidential. There are state and federal laws that govern the release of such information to protect the patient and the physician. Subject to certain exceptions, medical information may be released only upon written patient authorization. It is recommended that the authorization be updated at a minimum annually.

There are a number of situations in which medical information may be released without patient authorization. Some of those exceptions will be addressed in following sections. If unsure about whether to release a patient‘s medical information, it is always best to err on the side of protecting the patient‘s confidentiality. If there are any questions regarding release of medical information, the physician should contact legal counsel or his/her professional liability insurance company for advice.

3. 7

AUTHORIZATION FOR RELEASE OF MEDICAL INFORMATION–CHECKLIST FOR COMPLIANCE HIPAA privacy regulations provide that the healthcare provider generally must furnish a complete and current copy of the record to third parties upon written request from the patient.

The patient must identify the records to be released and the person or class of persons that may receive copies of them.

The MagMutual Risk Management Handbook

51

To release copies, the physician must be provided with an authorization signed by the patient or an appropriate personal representative.

Under the HIPAA Privacy Rule, physicians must treat personal representatives as the patient for matters relating to medical records access and release. Examples of personal representatives include, but are not limited to, parents of minors, executors of deceased patients‘ estates, and persons holding a Durable Power of Attorney for Healthcare.

HIPPA privacy regulations require the following elements to be present in a proper authorization for release of medical information. You may find this checklist useful to ensure that a medical release you have received complies with the privacy regulations.

AUTHORIZATION FORM CHECKLIST A valid authorization must contain at least the following core elements: A specific description of the information to be disclosed.

The name (or other specific identification) of the person(s) or class of persons authorized to make the use or disclosure of information.

Specifically to whom the physician may make the requested use or disclosure.

A description of each purpose of the requested information. The statement ―at the request of the individual‖ is a sufficient description of the purpose when an individual initiates the authorization and does not, or elects not to, provide a statement of the purpose.

An expiration date or an expiration event that relates to the individual or the purpose of use or disclosure.

The signature of the individual and date. If the authorization is signed by a personal representative of the individual, a description of such representative‘s authority to act for the individual must also be provided. 45 CFR § 164.508(c) (1) The individual‘s right to revoke the authorization in writing, and either: (a) the exceptions to the right to revoke and a description of how the individual may revoke the authorization; or (b) a reference to the physician‘s notice of privacy practices.

The MagMutual Risk Management Handbook

52

The ability or inability to condition treatment, payment, enrollment or eligibility for benefits on the authorization.

The potential for information disclosed with this authorization to be subject to re-disclosure by the recipient. 45 CFR § 164.508(c) (2) The authorization must be written in plain language. If it is the physician that seeks an authorization from a patient for a use or disclosure of protected health information, the physician must provide the patient with a copy of the signed authorization. 45 CFR § 164.508(c) (3) & (4).

3.8

RELEASE OF RECORDS The patient‘s medical record belongs to the physician. However, the information belongs to the patient and that information generally may not be released to third parties unless the patient ―authorizes‖ the release in writing. The specific requirements of a HIPAA-compliant authorization form are set forth in section 3.11 above. By contrast, the patient is entitled to ―access‖ his or her own records (in which case, the patient, rather than a third party may view the records or obtain copies). Whenever a copy of the patient‘s medical record is released to a third party, document the release. Place the patient‘s ―authorization‖ form in the medical record to show when and to whom it was released.

Never release the original record without prior consultation with MAG Mutual‘s Risk Management or Claims Departments. When releasing records, number the pages and send copies to prevent changes in the record that could be alleged were made by the patient‘s physician.

3.9

RELEASE FOR PURPOSES OF PAYMENT, TREATMENT & HEALTHCARE OPERATIONS

HIPAA privacy regulations establish several exceptions to the general rule that medical information may be released to third parties only upon the patient‘s written authorization. Three of the most important exceptions include release of information for purposes of payment, treatment and healthcare operations.

Payment – A physician may release a patient‘s health information to third parties (e.g., to an insurance company) for purposes related to payment for medical services rendered, and patient authorization is not required for such disclosure.

The MagMutual Risk Management Handbook

53

Treatment – Physicians may release health information without patient authorization when the disclosure is made for the purpose of providing treatment to the patient. For example, a specialist treating the patient may disclose the diagnosis and treatment plan to the patient‘s primary care physician without specific patient authorization.

Healthcare Operations – Physicians may release patient information without authorization when the disclosure is made for the purpose of conducting some healthcare operations. Healthcare operations are certain administrative, financial, legal and quality improvement activities of a covered entity that are necessary to run its business and to support the core functions of treatment and payment. For example, under the healthcare operations exception, a physician may disclose patient health information to a risk management consultant who is conducting a quality improvement study involving the physician‘s practice.

Similarly, the healthcare operations exception would permit a physician to disclose a patient‘s health information to the physician‘s medical professional liability insurer for the purpose of defending a claim brought by the patient.

3.10

REFUSAL TO RELEASE RECORDS TO PATIENT HIPAA Privacy regulations provide that the physician may refuse to furnish the record if the disclosure is likely to endanger the ―life or physical safety‖ of the patient or another person. 45 CFR § 164.524(2).

Physicians should use their best professional judgment in determining whether to refuse to release records on these grounds.

When the physician refuses to furnish a copy of the record to the patient on this basis, he/she must document the reason for this decision in the medical record. The patient has a right to have the denial reviewed by a licensed healthcare professional, selected by the physician, who will act as a reviewing official and the physician must provide or deny access in accordance with the reviewing official‘s determination. However, upon written request from the patient, the physician should furnish a copy of the medical record to another physician designated by the patient.

When a physician with proper patient authorization and acting in good faith and in accordance with the law, releases a copy of a patient‘s medical record, the physician may not be held civilly or criminally liable to the patient, guardian, parent or any other person for such release of information.

The MagMutual Risk Management Handbook

54

3.11

RELEASE OF RECORDS TO OTHER PHYSICIANS Physicians‘ offices often release records without authorization, to other physicians for continuity of care. This is not only acceptable, but also necessary for consulting or referral physicians to have the information to treat the patient. Include all pertinent information the physician may need including the records of other physicians if that information will aid in the care and treatment of the patient. HIPAA privacy regulations permit the release of medical information for treatment purposes without patient authorization. 45 CFR §164.506.

3.12

RELEASE OF OTHER PHYSICIANS‘ RECORDS In general, a treating physician may release medical records to another physician that includes other treating physicians consult reports etc when these records have been relied upon in the treatment of the patient. However, it is advisable to notify the other physician(s) of record requests that are made by attorneys and which also may involve medical malpractice litigation.

3.13

PERSONAL REPRESENTATIVES – WHO MAY AUTHORIZE RELEASE OF PATIENT RECORDS The patient may authorize in writing the release of his/her medical record to third parties such as insurance companies and attorneys. If a third party presents an authorization to release a patient‘s medical record, first determine if the authorization is authentic and proper. If it appears to be authentic and proper and it complies with HIPAA privacy regulations (see Section 3.11 above), and the physician releases patient information in good faith, then he/she may not be held civilly or criminally liable.

If the authorization to release medical information does not appear authentic or proper, the patient should be questioned as to whether he/she is authorizing release. Physicians may want to establish an office policy whereby records will only be released if the patient‘s authorization to do so is less than six (6) months old. If the patient‘s condition has changed substantially since the date the authorization was signed (e.g., the patient is now HIV positive), the patient should be contacted to obtain current authorization. The patient may revoke in writing an authorization to release medical records. 45 CFR § 164.508(5).

Requests for release of records from attorneys are no different than other third parties.

The MagMutual Risk Management Handbook

55

Patient written authorization or other legal process is still required. Do not comply with a request for records that states ―Patient Authorization on File.‖ Personal Representatives Under certain circumstances, someone other than the patient may authorize release of the patient‘s medical records. Such persons are known as ―personal representatives‖ and the HIPAA Privacy Rules require physicians to treat them as the patient for matters relating to medical records access and release. Examples of personal representatives include, but are not limited to, parents of minors, executors of deceased patients‘ estates, and persons holding an Advance Directive for Healthcare of the patient.

Request for Medical Records of Deceased Patient A deceased patient‘s medical records may properly be released by the physician on written authorization from the following persons: 1. the executor, administrator, or temporary administrator for the deceased patient‘s estate if such person has been appointed; 2. if an executor, administrator, or temporary administrator for the deceased patient‘s estate has not been appointed, by the surviving spouse 3. if there is no surviving spouse, by any surviving child 4. if there is no surviving child, any parent The physician may ask executors or administrators for copies of the applicable letters testamentary or letters of administration proving their qualifications or they may request the executor, administrator or survivor to certify in writing their status and that they are authorized to have access to the patient‘s records.

It is prudent to check with the court in the practice‘s jurisdiction but in most states, a physician is justified in relying upon such a written certification.

The executor, administrator or survivor‘s authority does not extend to matters privileged under Georgia law. Thus, for example, the physician would not be authorized to release to the executor, administrator or survivor records that contain material describing psychiatric diagnosis or treatment (i.e., material covered by the patient-psychiatrist privilege).

Should the request for a deceased patient‘s medical records come from a person that has not qualified as executor or administrator with the probate court or who is not considered a survivor by law as listed

The MagMutual Risk Management Handbook

56

above, the physician should decline to comply with the request, as the patient‘s right to confidentiality extends beyond death. 45 CFR § 164.512(f) & 45 CFR § 164.502(g) (4).

Request for Medical Records of a Minor As long as a parent maintains parental rights to the minor, that parent will generally have the right to authorize release of his or her minor child‘s medical records. A distinction exists between a noncustodial parent (who, pursuant to a separation agreement or divorce decree, does not have full custody of the child) and a parent who has had his or her parental rights to the minor terminated (through an adoption or other formal legal process). Still being the minor‘s parent as a legal matter, the divorced or separated noncustodial parent is statutorily permitted to authorize release of the minor‘s medical records, while a parent who has had his or her parental rights terminated is not so permitted. If a custodial parent requests the physician not release medical records of a minor child to the child‘s noncustodial parent (or vice versa), the physician should request a copy of any applicable court order to that effect. Where a minor patient has divorced or separated parents, the physician should consider verifying the standing of the parents to release medical records or to consent to treatment. Similarly, physicians should generally require the minor patient‘s natural parent or guardian to authorize release, rather than relying on authorization from a step-parent whose only legal connection to the minor is the step-parent‘s marriage to the minor‘s mother or father. Today, courts are more willing than ever to grant custody arrangements that might have been considered unconventional in years past. It would be prudent for physicians to document their medical record with information about their minor patients‘ parents or guardians, so there will be no question who has authority to authorize release of a minor‘s health records.

3.14

RESPONDING TO SUBPOENAS, REQUESTS FOR PRODUCTION OF DOCUMENTS AND SEARCH WARRANTS Patient‘s medical records may also be requested by a subpoena or a request for production of documents. By law, the physician must comply with a subpoena or a request for production of documents, and in the time frame required.

Under HIPAA a covered healthcare provider or health plan may disclose protected health information required by a court order, including the order of an administrative tribunal. However, the provider or plan may only disclose the information specifically described in the order.

A subpoena issued by someone other than a judge, such as a court clerk or an attorney in a case, is different from a court order.

The MagMutual Risk Management Handbook

57

A covered provider or plan may disclose information to party issuing a subpoena only if the notification requirements of the Privacy Rule and state are met. Before the covered entity may respond to the subpoena, the Rule requires that it receive evidence t hat reasonable efforts were made to either: Notify the person who is the subject of the information about the request, so that the person has a chance to object to the disclosure, or to Seek a qualified protective order for the information from the court.

For further information on this topic, please refer to 45 C.F.R. ยง 164.512(e) and the Office of Civil Rights (OCR) Frequently Asked Questions.

When responding to a request as a non-party to a lawsuit, allow time (the length of time is specified by each state) for the parties in the lawsuit to object to the record release through the court. The physician may also file an objection to providing information at or before the time specified in the subpoena or request for production of documents. This should be done through legal counsel. If an objection is filed, the physician shall not produce the records unless and until ordered by the court.

As a practical matter, physicians produce certified copies of medical records in lieu of originals. Include with the certified copies of the record, a copy of the subpoena and an affidavit by the person responsible for maintaining the medical records testifying to the identity and authenticity of the records, that they are true and correct copies and, as appropriate, that the records were made and kept in the regular course of business at or near the time of the events recorded by persons having knowledge of the information set forth. The court may still order the original record to be produced in order to determine the accuracy of the reproductions made. If the release of original medical records cannot be avoided, a chain of custody should be established that states who picked up the record, the date it was released, where the record was being taken, how long the record would be kept, when the record would be returned, the location of the record and who will have possession of the record. The pages should be numbered to help verify that the entire medical record is returned.

Since laws and specific requirements vary from state to state, policyholders should consult with MagMutual Insurance Company when receiving requests for patient medical records pursuant to a legal notice,

The MagMutual Risk Management Handbook

58

request made by an attorney, and court etc. if there are questions or concerns.

Search Warrants Generally, a search warrant is obtained by the police when investigating the commission of a criminal offence. A warrant is obtained by making an application to a magistrate. Evidence must be provided before the warrant is issued. The warrant may be issued to a named member of the police force or all members of the police force. If it is issued to all members of the police force, any member may execute the warrant. The warrant should state clearly the address that may be searched and the items sought pursuant to the warrant. The warrant authorizes the police to break, enter and search any premises named in the warrant, and to arrest the person having custody of the things named in the warrant. It is necessary to cooperate with the police who are executing the warrant.

Appropriate response to search warrants Inform management as soon as possible that you have been presented with a warrant Cooperate with the police who are executing the warrant – be courteous and act professionally.

Ensure the warrant has been issued by the court. Note the person to whom it has been issued and the items that may be seized pursuant to the warrant.

If the warrant has been issued to the police generally, any member of the police force may execute it. Otherwise, the officer named in the warrant must execute it. Monitor that only material named in the warrant is taken during the search. Object politely if police attempt to remove material that you believe is outside the scope of the warrant.

Keep a list of all material taken in the search. If possible, keep copies of the documents.

Do not undertake any routine or other shredding of documents or erasing of information from computers while the search is being undertaken.

Keep notes of all requests made of the police during the search and their responses.

The MagMutual Risk Management Handbook

59

Obtain legal advice concerning the search and seizure of material as soon as possible.

HIPAA privacy regulations permit the release of medical records pursuant to a search warrant (45 C.F.R. § 164.512 (e) & (f)), without prior notice to the patient and giving the patient an opportunity to object to the search warrant.

Other Law Enforcement Requests Except in certain limited circumstances, physicians should not release a patient‘s health information to a law enforcement officer without some legal process (e.g., subpoena or search warrant).

In most respects, law enforcement officers do not have greater authority to access patient medical information than any ordinary citizen does.

Under HIPAA Privacy Regulations, a physician may disclose limited health information without patient authorization in response to a law enforcement official‘s request for the purpose of identifying or locating a suspect, fugitive, material witness or missing person. In this instance, the physician may disclose only the following information: (a) name and address; (b) date and place of birth; (c) social security number; (d) ABO blood type and rh factor; (e) type of injury; (f) date and time of treatment; (g) date and time of death; (h) description of distinguishing physical characteristics, including height, weight, gender, race, hair and eye color, presence or absence of facial hair, scars, and tattoos. HIPAA Privacy Regulations allow disclosure to law enforcement officers in certain other cases, as well. See 45 CFR 164.512.

Privileged Medical Records As referenced in other parts of this Handbook, mental health records, AIDS confidential information or alcohol and drug abuse treatment records should not be released without specific and proper patient authorization patient or a court order signed by a judge commanding the physician to release such records. Such records are not only confidential like all medical records, they are considered privileged or subject to a higher degree of confidentiality. Thus they may not be released without legal waiver of privilege by the patient or a court order.

In-Camera Inspection of Medical Records If a physician has received a subpoena regarding medical records and has concerns about violating a patient‘s confidentiality or privilege the physician should consult with an attorney about complying with the subpoena, and consider asking the judge to conduct an in-camera inspection of the records. The physician would file a sealed copy of the

The MagMutual Risk Management Handbook

60

medical records with the court clerk‘s office, placing a notation on the outside of the envelope that the contents are ―Medical Records of John/Jane Doe‖ subpoenaed under a specifically identified case (including case number) and are not to be opened without a court order directing such action.

The sealed medical records should be accompanied by a cover letter stating the physician‘s reasons for declining to comply with the subpoena, requesting an in-camera inspection and asking the court not to release records to the parties without issuing an appropriate court order.

3.15

RELEASE OF DRUG & ALCOHOL RECORDS A general request for the release of medical records is not sufficient for the production of records containing information regarding drug and/or alcohol abuse treatment. When releasing these types of records, the Code of Federal Regulations, 42 CFR § 2.31 states: A written consent to a disclosure under these regulations must include:The specific name or general designation of the program or person permitted to make the disclosure.

The name or title of the individual or the name of the organization to which disclosure is to be made.

The name of the patient.

The purpose of the disclosure.

How much and what kind of information is to be disclosed.

The signature of the patient and, when required for a patient who is a minor, the signature of a person authorized to give consent under Georgia law or, when required for a patient who is incompetent or deceased, the signature of a person authorized to sign in lieu of the patient.

The date on which the consent is signed.

A statement that the consent is subject to revocation at any time except to the extent that the program or person which is to make the disclosure has already acted in reliance on it. Acting in reliance includes the provision of treatment services in reliance on a valid consent to disclose information to a third-party payer.

The MagMutual Risk Management Handbook

61

The date, event or condition upon which the consent will expire if not revoked before. This date, event or condition must insure that the consent will last no longer than reasonably necessary to serve the purpose for which it is given.‖ Each such disclosure must be accompanied with a notice which states that: ―This information has been disclosed to you from records protected by Federal Confidentiality Rules (42 CFR PART 2). The Federal rules prohibit you from making any further disclosure of this information unless further disclosure is expressly permitted by the written consent of the person to whom it pertains or as otherwise permitted by 42 CFR PART 2. A general authorization for the release of medical or other information is NOT sufficient for this purpose. The Federal rules restrict any use of the information to criminally investigate or prosecute any alcohol or drug abuse patient.‖ 42 CFR § 2.32.

Again, state privacy statutes may vary and should be consulted, in particular with regard to any exceptions to the above rule.

3.16

RELEASE OF PSYCHIATRIC OR PSYCHOTHERAPY RECORDS A confidential psychiatrist-patient, psychologist-patient relationship is established when a person voluntarily or involuntarily seeks professional psychiatric or psychological care.

This relationship may also be created between a patient and a family/treating physician if the patient seeks care for a psychological disorder (e.g., depression, anxiety, etc.)

Communications made in the course of this confidential relationship are considered privileged. This privilege also extends beyond the death of the patient. The patient‘s right to privacy imposes a duty on the psychiatrist or psychologist not to disclose these communications.

The patient ―privilege‖ is not absolute and may be waived in several situations which include: When the patient or other person authorized by law to act on behalf of the patient, provides written authorization, but only if the treating psychiatrist does not believe such disclosure would be harmful to the patient‘s health; or

The MagMutual Risk Management Handbook

62

When necessary to protect the public welfare, specifically, a duty to warn that the patient is likely to cause physical harm to others.

HIPAA Privacy Regulations permit this disclosure, but Georgia law has not expressly authorized it (as the majority of states have), so physicians should exercise their professional judgment, consult an attorney and consult their medical professional liability insurer if confronted with a situation of this nature.

Obtaining legal advice from a licensed attorney will be essential in determining the proper course of action.

A duty to protect the patient from self harm applies when the patient is under the control of his/her psychiatrist, where the patient is hospitalized and under the care and supervision of his/her physician and hospital staff.

Privileged information includes the following patient information: Diagnosis Test results Consultations Evaluations Communications, except in rare circumstances.

Privileged information may be released only upon proper patient authorization or specific court order. If a physician has been requested to release medical records that include privileged information, the physician should redact (by removing or blacking-out) those portions of the medical record that are deemed privileged, unless the patient‘s authorization specifically references psychiatric information. The physician should also seek advice from his or her attorney prior to releasing such information.

In addition, ―psychotherapy notes‖ are further protected and may not be released unless a separate authorization is signed by the patient specifically requesting release of psychotherapy notes. Psychotherapy notes are defined in HIPAA Privacy Regulations as notes recorded by a healthcare provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint or family counseling session and that are separated from the rest of the individual‘s medical record. Psychotherapy notes excludes medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and a brief summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis and progress to date.

The MagMutual Risk Management Handbook

63

Non-privileged information includes: Facts such as the name of facility where the patient is hospitalized and dates of psychiatric/psychological treatment.

Communications made to persons other than the psychiatrist/psychologist or his/her designated agents (e.g., a nurse, physician assistant or other healthcare provider).

In Georgia, communications between a patient and a licensed clinical social worker, clinical nurse specialist in psychiatric/mental health, licensed marriage and family therapist or licensed professional counselor during the psychotherapeutic relationship are also privileged. Additionally, communications between or among any psychiatrist, psychologist, licensed clinical social worker, clinical nurse specialist in psychiatric/mental health, licensed marriage and family therapist and licensed professional counselor who are rendering psychotherapy or have rendered psychotherapy to a patient, regarding that patient‘s communications which are otherwise privileged, must remain confidential.

Request for Records by Patient The patient is entitled to reasonable access to his/her psychiatric/psychological records, if the treating psychiatrist/psychologist does not believe such disclosure would be harmful to the patient‘s health.

To obtain his/her records, the patient must: Provide written authorization specifying that the records sought are psychiatric/psychological records.

Designate the person or entity that is to receive the records.

Psychotherapy notes will not typically be released along with a request for psychiatric records generally, because HIPAA Privacy Regulations require a separate written authorization specifically requesting release of psychotherapy notes.

In-Camera Inspection The general rule is that a physician should not release psychiatric or psychotherapy records absent patient authorization or court order. In some cases, a physician may be placed in the difficult position of having to respond to a subpoena, for example, that requests medical records including certain highly confidential and privileged psychiatric information. The physician does not want to ignore the subpoena and subject him or herself to sanctions by the court, but the physician also

The MagMutual Risk Management Handbook

64

does not want to breach the patient‘s confidentiality. In this case, the physician should consult with an attorney and consider requesting the court to conduct an in camera inspection of the records.

3.17

RELEASE OF AIDS/HIV RECORDS Acquired Immunodeficiency Syndrome (AIDS) Human Immunodeficiency Virus (HIV) information is considered confidential and generally may not be released without the express written permission of the patient or person authorized to act on behalf of the patient. A general authorization for the release of medical information will not suffice. The release must specifically state that the patient authorizes the release of confidential HIV information.

Exceptions Confidential HIV information may be disclosed under certain circumstances. The following includes the most common circumstances when HIV information can be released; however, this is not an all-inclusive list. If a physician is unsure about whether to release HIV information, he/she should contact MAG Mutual or his/her personal attorney.

Confidential HIV information may be disclosed to the patient, or if the patient is incompetent or a minor, to the patient‘s parent or legal guardian.

If the physician reasonably believes that the spouse, sexual partner or child of the infected patient is at risk of being infected with HIV by the patient, the physician may then disclose to the spouse, sexual partner or child that the patient has been determined to be infected with HIV. However, the physician must first attempt to notify the patient such disclosure is going to be made.

HIV information may be disclosed to a healthcare provider or healthcare facility that has personnel or patients who may be at risk of being infected with HIV by that patient, and such disclosure is reasonably necessary to protect such personnel or patients from that risk or when there is a legitimate need for that information to provide healthcare service to the infected patient.

If a physician receives a subpoena or a Request for Production of Documents for a patient whose medical records contain AIDS/HIV confidential information, such information may be released as long as the patient has been given at least ten (10) days notice of the request for disclosure and does not notify the physician of any objection to the release within the time specified in the notice.

The MagMutual Risk Management Handbook

65

For more information about the release of AIDS/HIV confidential information, physicians should contact MAG Mutual‘s Risk Management Department or their personal attorneys.

3.18

CHARGING FOR COPIES OF RECORDS Under the Health Insurance Portability and Accountability Act (HIPAA) a covered entity can only charge "reasonable" cost-based fees for providing the medical records to patients. See 45 CFR 164.524(c). Arguably, fees that is not cost-based, even if permitted by a state statute, may be contrary to the HIPAA regulation and therefore preempted by this federal regulation. As charges for copies of medical records vary from state to state, policyholders are encouraged to inquire at the state level.

The HIPAA Privacy Rule prohibits the charge for Search, Retrieval and Other Direct Administrative Costs from being assessed against the patient or the patient‘s personal representative requesting medical records. A personal representative under HIPAA is someone who has authority to make healthcare decisions for the patient (e.g., a parent or guardian), and does not include the patient‘s attorney unless that attorney has authority to make healthcare decisions for the patient.

Physicians may charge persons other than the patient or the patient‘s personal representative for Search Retrieval and Other Direct Administrative Costs.

Physicians may require payment of such fees prior to the records being furnished. However, physicians should not withhold information required by another physician or other healthcare professional for continuity of patient care because the patient or requesting party has not paid or cannot pay for the copying and mailing costs. Since the information belongs to the patient, and the paper or other media belongs to the healthcare provider, the patient can request a copy at any time. You should never release the original record at any time without consulting MAG Mutual.

Physicians may not withhold copies of the medical record on grounds that the patient has failed or refused to pay his or her medical bill.

The physician will not want to face an allegation that the information required to treat the patient was withheld because the patient could not pay for their care and treatment, especially if such refusal to release information necessary for medical treatment caused an injury to the patient.

The MagMutual Risk Management Handbook

66

3.19

MANDATORY RELEASE/REPORTING A physician who is authorized or required under law to release patient information will not have any civil or criminal liability for this disclosure.

Georgia law requires, and the HIPAA Privacy Rule permits, release of medical records, i.e., mandatory reporting to state governmental agencies/authorities in each of the following cases: Child abuse Nursing home resident abuse, non-accidental injuries Threats to physical safety Venereal or other reportable diseases Vital statistics Spinal cord-disabled or head-injured patients Unusual or suspicious deaths Notification of communicable diseases in deceased persons Child Abuse Child abuse must be reported to a child welfare agency designated by the Department of Human Resources (DHR) when any of the following conditions are observed: Injuries inflicted by a parent or caretaker, other than accidental means.

The child has been exploited or neglected by a parent or caretaker.

Sexual assault or exploitation.

The report must be made immediately, but in no case later than 24 hours from the time there is a reasonable cause to believe the child has been abused, by telephone or otherwise and followed by a report in writing, if requested, to a child welfare agency or to an appropriate police authority, or district attorney. Include the name and address of the child‘s parents and caretakers, if known, age, injuries and other important information. If contact with the patient occurs in the facility, the physician must notify the administrator or designee who would be responsible for making such a report. The person in such facility responsible for making the report shall not make any modification, control, or restraint of the information that was provided by the reporter initially.

It is a misdemeanor to knowingly and willfully fail to comply with mandatory reporting requirements.

The MagMutual Risk Management Handbook

67

Nursing Home Resident Abuse A physician must report any abuse or exploitation of nursing home residents to DHR. ―Abuse‖ means any intentional or grossly negligent act or series of acts or intentional or grossly negligent omission to act which causes injury to a resident, including, but not limited to, assault or battery, failure to provide treatment or care or sexual harassment of the resident. ―Exploitation‖ means an unjust or improper use of another person or his property for one‘s own profit or advantage.

The report shall contain the name and address of the nursing home and resident, any injuries received suspected causes and other information relating to the case. The law provides that no person or facility shall discriminate or retaliate against the reporter or the resident.

Non-accidental Injuries Physicians or other healthcare workers who believe that a person has been injured through non-accidental means must report the name and address of the patient, extent of the injuries and other information relating to the patient. It is recommended that the physician or other healthcare provider seek legal advice where such reporting may be construed to be injurious to the patient‘s general health and welfare (i.e., suicide).

Threat to Physical Safety A physician that knows, or should know, a patient is likely to cause bodily harm to others has an independent duty to exercise control with such reasonable care to prevent harm to others at the hands of the patient.

If a patient threatens the life or safety of a third party in the course of medical or psychiatric treatment, the law is clear in many states that the physician has a duty to warn that third party or law enforcement authorities of the threat. HIPAA Privacy Regulations permit this type of disclosure, but Georgia law has not expressly authorized it (as the majority of states have), so physicians should exercise their professional judgment, consult an attorney and consult their medical professional liability insurer when confronted with a situation of this nature. Obtaining legal advice from a licensed attorney will be essential in determining the proper course of action.

The MagMutual Risk Management Handbook

68

Venereal or Other Reportable Diseases Upon diagnosis or treatment of venereal disease, or other reportable diseases, the physician shall make a report of such case to the appropriate health authorities A notifiable disease list (the official list) may be obtained from the county health department as well as the reporting forms mandated by the state. Notifiable diseases carry different reporting deadlines.

Therefore the physician should contact the local health department for more information.

Vital Statistics Births, deaths and fetal deaths must be reported to the state. This is commonly done by the hospital.

Spine Cord-Disabled or Head-Injured Patients Spine cord-disabled or head-injured patients must be reported to the DHR. This report must be made within 48 hours after identification of the spinal cord-disabled or head-injured person. A ―head-injured person‖ means a person who has sustained brain damage of traumatic or acute onset, not of a degenerative nature, that results in temporary or permanent decrease of cognitive, behavioral, social or physical functioning. A ―spinal cord-disabled person‖ means a person suffering from any spinal cord disease, spinal cord injury or neural tube defect, whether congenital or acquired, which results in partial or total loss of motor or sensory functions and which results in partial or total disability, regardless of whether such a disability is temporary or permanent.

The report shall contain the name, age, address, type and extent of disability and such other information as may be required.

Unusual or Suspicious Deaths Unusual or suspicious deaths must be reported to the coroner or country medical examiner.

Unusual or suspicious death includes death resulting from violence or suicide when unattended by a physician, and the person was in apparent good health. The coroner or county medical examiner will take charge of the deceased person after such notification is made.

The MagMutual Risk Management Handbook

69

Communicable Diseases in Deceased Persons Georgia law requires that when a person who has been diagnosed as having an infectious or communicable disease dies in a hospital or other healthcare facility, the attending physician must prepare a written notification describing the disease to accompany the body when it is picked up for disposition. The term ―infectious or communicable disease‖ includes syphilis, gonorrhea, chancroid, AIDS, infectious hepatitis and tuberculosis.

For more information regarding any of these required reporting provisions, contact your local or state health department.

3.20

FAXING AND EMAILING PATIENT INFORMATION Faxing health information has become a standard and routine means of communication between physicians and patients. The speed with which information can be sent or received makes faxing an attractive method of communication. There are no rules or regulations that prohibit physicians from faxing confidential patient information, but care should be taken to preserve the privacy and security of the health information contained in any fax. Therefore, it is important to have systems and procedures in place that assure patient confidentiality. HIPAA Security regulations require physicians to adopt certain administrative, technical and physical security procedures to protect the confidentiality and security of their patients‘ electronic health information.

In this regard, it is recommended that physicians not email confidential patient health information unless they have implemented certain encryption mechanisms that will prevent hackers and others from inappropriately intercepting or viewing the contents of the email.

Certainly email can be an effective tool for general communication with patients, including the scheduling of appointments, but physicians should refrain from sending confidential patient information via unsecure means such as unencrypted email.

Healthcare providers should consider the following when developing policies for faxing confidential patient information: Thoroughly review the HIPAA Privacy and Security Regulations to determine any requirements applicable to your policies.

Generally, a healthcare professional must have the patient‘s signed authorization to release confidential medical information.

The MagMutual Risk Management Handbook

70

Limit the use of faxing confidential medical information to situations that require the immediate use of the faxed information or when there is not enough time to receive the information through the mail or usual delivery procedures.

Confidential medical information should be transmitted to fax machines located in secure areas, such as the business office or back office.

Verify and double-check the fax number of any recipient of a fax containing health information.

Always notify the receiving party of when to expect a fax.

If an expected fax has not been received, verify the status of the fax with the sending party.

Develop a fax cover sheet with the following or similar wording: ―The information contained in this message is legally privileged and confidential information and is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient or a duly authorized agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination, distribution or copy of this message and its content is strictly prohibited. If you have received this message in error, please immediately notify us by telephone and delete the electronic version of the message from your computer system and/or return the original message and any copies of it to us at the address provided above via the United States Postal Service. We will reimburse you for any cost which you incur for postage. Thank you.‖ Attempts should be made to locate faxes lost due to misdialing or errors in transmission and instructions given for disposition.

Fax transmissions received on thermal paper should be photocopied on regular paper prior to filing in the patient‘s medical record.

Thermal paper faxes fade with time and often become illegible. Fax machines using thermal paper are no longer standard equipment, and should be replaced with newer machines using more durable regular copy paper.

There will be occasions when portions of a patient‘s medical record will have to be faxed to ensure optimal patient care. An established pro-

The MagMutual Risk Management Handbook

71

cedure for faxing will facilitate quality patient care and protect patient confidentiality.

3.21

RELEASING RECORDS RELATED TO TREATMENT UNDER WORKERS‘ COMPENSATION The employee who has filed a Workers‘ Compensation claim or who is receiving weekly income benefits under Workers‘ Compensation or whose employer has paid any medical expenses for work-related accidents or injuries essentially waives any privilege or confidentiality concerning his/her medical records relating to these types of injuries.

State law and HIPAA Privacy Regulations permit the physician to disclose the patient‘s entire medical record to the employer or employer‘s Workers‘ Compensation insurer in such cases. In order to receive benefits under Workers‘ Compensation, the employee must provide the employer with a signed release for medical records. This means that any physician who has examined, treated or tested the employee shall provide, within a reasonable time and for reasonable charge, all information and records related to the employee‘s Workers‘ Compensation claim, including, but not limited to, communications with psychiatrists or psychologists.

The treating physician should have a copy of the signed release. The release form should state the name of the medical provider and further state that the release will expire on the date of the Workers‘ Compensation hearing.

Rehabilitation nurses should be regarded as agents of the employer and insurance carrier. Problems related to the release of records to the rehabilitation nurse should be referred back to the employer and insurer.

3.22

ELECTRONIC MEDICAL RECORDS (EMR) & THE HIPAA SECURITY RULE Although electronic medical records (EMR) offers substantial benefits, it is necessary to understand and manage the special security risks introduced by such systems. Physicians maintaining patient records electronically should become familiar with the requirements of the HIPAA Security Regulations (or HIPAA Security Rule) that became effective in April 2005 and as amended under the American Recovery and Reinvestment Act of 2009. To achieve and maintain compliance with the Security Rule, physicians, hospitals and other ―covered entities‖ will have to implement a series of administrative, technical and physical security procedures. The rule will generally require physicians to do the following:

The MagMutual Risk Management Handbook

72

Ensure the confidentiality, integrity, and availability of all electronic protected health information (PHI) they create, receive, maintain or transmit.

Protect against any reasonably anticipated threats or hazards to the security or integrity of electronic PHI. Protect against any reasonably anticipated uses or disclosures of electronic PHI that are not permitted or required under the Rule.

Ensure compliance with the rule by their staff.

The Security Rule focuses more on the end result compliance than the method by which physicians will achieve that end result. It was designed to be scalable, flexible and addressable through multiple approaches. The rule states that when deciding which security measures to use, physicians must take into account such things as the size, complexity and capabilities of their practices and their technical infrastructure, hardware and software security capabilities.

Physicians are encouraged to contact an attorney or a qualified healthcare consultant knowledgeable on healthcare information systems to ensure compliance with those Regulations.

Security challenges created by the electronic medical record can be both internal and external. Examples of internal challenges include the unauthorized release of medical record information or the unintentional deletion of information from a patient‘s record. Challenges from external sources include computer viruses, hackers, and vendors who install disabling software. Other risk management concerns include theft of laptop computers, power failures, transmission errors and computer hardware failures.

Security should be designed into the system from the start.

All records, centralized or decentralized, should be kept in a secure location accessible only to authorized individuals.

Levels of security should be established so users can only access the information they need to do their jobs. Access codes should be assigned according to job codes.

Maintain a list of users, their access codes and their level of access.

The MagMutual Risk Management Handbook

73

Disclosure of an employee‘s access code (for login to the system) should be subject to the same sanction as disclosure of confidential patient information.

Disclosure of information should be handled by trained individuals to ensure compliance with state and Federal laws.

If participating in an EMR network, draft and execute a confidentiality agreement with all others in the network, and make sure all employees understand their responsibility to keep patient information confidential.

All employees should sign confidentiality agreements at the time of hire and a confidentiality acknowledgment annually to remind them of their ongoing confidentiality responsibilities.

Implement policies and procedures to protect against the theft of laptop computers and any computer hardware used in a physician‘s practice.

Document security measures.

All users, including physicians, should be required to attend an orientation program and have periodic updates.

Deactivate codes when a person leaves employment.

Limit staff‘s access to printers.

Prepare a disaster plan.

Protect against viruses.

Negotiate indemnifications in contracts with computer vendors.

Check with your state laws allowing healthcare providers to create, maintain, transmit, receive and store medical records in an electronic format, and would not have to maintain duplicate paper copies. A paper print-out of an electronic record would be considered an original for purposes of providing copies to patients or other authorized parties and for introduction of the records into evidence in administrative or court proceedings.

For additional information regarding certification standards for electronic health records systems, contact the Certification Commission for Health Information Technology (―CCHIT‖) at www.cchit.org.

The MagMutual Risk Management Handbook

74

3. 23

RELEASE OF MEDICAL RECORDS LOG & EMPLOYEE SIGNATURE LOG Release of Medical Records Log One quick and easy method to keep track of potential lawsuits at your office is to implement a release of medical records log. This log is designed to help you be aware of which patient‘s medical records have been requested and by whom.

By tracking medical records which are released, you may be alerted to a potential medical professional liability claim or lawsuit prior to the actual receipt of a demand for money or lawsuit.

Employee Signature Log An Employee Signature Log is a way to be able to quickly identify an employee‘s signature in the medical record. With employee turnover, this log is especially useful to identify signatures of employees who no longer work for the practice, but may need to be identified later if a claim or lawsuit ensures.

Accounting of Disclosures HIPAA Privacy Regulations require physicians to account for inappropriate disclosures of protected health information to third parties. The physician must act on the patient‘s request for an accounting within 30 days. Physicians do not have to account for disclosures specifically authorized by the patient or for disclosures made for purposes of payment, treatment or healthcare operations. 45 CFR § 164.528.

3. 24

ABBREVIATIONS Every medical office should have an approved list of standard abbreviations for use in medical records. When healthcare practitioners use unusual or non-standard abbreviations, the quality of communication suffers and patient care can be compromised. However, abbreviations should not be used on informed consent forms or in any other communication with the patient.

The MagMutual Risk Management Handbook

75

SECTION 4 – CLINICAL 4.1

COMMUNICATION AMONG HEALTHCARE PROFESSIONALS Communication is generally not the proximate cause of a lawsuit.

However, miscommunication among healthcare workers can lead to errors and patient injuries, thereby prompting a legal action. The following situations are common communication errors: Failure of the primary physician to provide essential information to the covering physician regarding a patient‘s condition or medical history.

Lack of explicit directions or protocols for nursing personnel regarding when to notify the physician of a patient‘s change in condition.

Inadequate communication from nursing personnel to the physician of a patient‘s deteriorating condition.

Failure of the covering physician to communicate to the primary physician the services provided to a patient.

Degree of urgency not expressed for referrals and follow-up care.

Failure to communicate roles and responsibilities when more than one physician is providing care for the patient (the primary physician is ultimately responsible for the patient).

Lack of verbal communication from consultants, radiologists or pathologists identifying an abnormality.

Reliance on the assumption that no response from the referral physician indicates the patient‘s problem was resolved.

HIPAA regulations do not require patient authorization for communication between healthcare professionals for purposes of treating the patient.

4.2

COVERAGE AND TAKING CALL Patients expect quality care regardless of who is providing the care. To meet this expectation and avoid litigation, the primary physician should adhere to the following guidelines.

The MagMutual Risk Management Handbook

76

Be sure the covering physician is of the same specialty or competent in the particular area of medicine.

Provide backup consultants.

Advise hospitalized patients of covering physicians and the length of time they will be covering.

Verify the covering physician‘s hospital privileges, the procedures he/she is credentialed for and his/her familiarity with hospital routines.

Review hospitalized patients‘ current status and any problems with the covering physician.

Caution the covering physician against prescribing or refilling medication over the telephone. When a refill is necessary, advise the covering physician to prescribe only enough medication to last until the primary physician returns.

Advise the covering physician of the office patients who may call and require attention.

After returning, discuss with the covering physician any changes in condition, therapies or special situations, etc.

4.3

CONSULTATIONS AND REFERRALS There will be times when some patient‘s clinical problems may be beyond a physician‘s expertise or specialty, and the use of a consultant is warranted. Below are listed some of the most common situations when a consultation is needed.

A consultation should be obtained when a physician is uncertain about the diagnosis or treatment, especially when the patient‘s problem is outside of the physician‘s specialty.

Obtain a consultation when the patient‘s condition is ordinarily treated by another specialty or subspecialty.

If an adverse outcome is anticipated, seek the advice of a second physician.

If the patient or family requests a second opinion, get a consultation.

The MagMutual Risk Management Handbook

77

Use a consultant if an alternative or combined therapy involving another specialty can be considered.

When the handling of a case is questioned, obtain a consultation.

Obtain a consultation when the patient does not respond to treatment as expected.

After a physician decides a consultation is needed, he/she must take certain measures to prevent miscommunication and patient injury.

The following guidelines will help prevent this from happening: Document the reason for the consultation in the patient‘s chart.

Explain to the patient the need for and purpose of the consultation.

Communicate orally with the consultant, especially in serious and urgent cases.

Provide the consultant with a complete history and records of the case along with an opinion.

Document the rationale for the treatment if it is different from the consultant‘s recommendations.

Ensure that there is a clear understanding among the patient, primary physician and consulting physician as to who is responsible for the patient‘s continued care.

Track to make sure the patient keeps the consultative visit.

The consultant also has communication responsibilities to the patient and physician. These responsibilities are listed below.

Inform the responsible physician and the patient of complications that might arise from procedures the consultant carries out.

Communicate the findings and recommendations to the responsible physician and patient in a timely manner.

Provide a complete copy of the consultant‘s report to the responsible physician.

Notify the physician if a patient does not keep an appointment with the consultant.

The MagMutual Risk Management Handbook

78

4.4

ERRORS IN DIAGNOSIS Failure to diagnose, a misdiagnosis or a delayed diagnosis are common allegations in a medical professional liability claim. In today‘s litigious society, it is imperative that physicians become more aware of situations contributing to these types of allegations. The following are frequently found in cases alleging an error in diagnosis: Incomplete medical history.

Inadequate inquiries regarding issues associated with a patient‘s primary complaints and symptoms.

Inadequate review of or failure to review the chart for information recorded by other healthcare workers.

Inadequate physical examination and failure to record all positive and negative findings.

Failure to recognize dangerous signs, symptoms or complaints such as: – – – – – – – –

Abnormal bleeding Abdominal pain Chest pain Changes in neurovascular status Fever of unknown origin Headache Unexplained weight changes Unexplained changes in mental status

Failure to review laboratory and x-ray results.

Failure to perform indicated or baseline studies.

Failure to document rationale for ruling out a diagnosis of an acute condition.

Failure to warn patients of the potential consequences of refusing diagnostic treatment.

Failure to recommend follow-up care or hospital admission.

Inadequate follow-up with patients who missed appointments for chronic or potentially serious conditions.

The MagMutual Risk Management Handbook

79

Failure to communicate with the consulting or the referring physician.

4.5

SUGGESTIONS FOR PREVENTING MEDICATION ERRORS Every physician knows the danger of medication errors. The following are precautions physicians should take when prescribing medication.

Request that patients bring all their medications to each office visit, including over-the-counter medications.

Inquire about allergies prior to issuing a prescription and document the patient‘s response.

Utilize a single medication record to monitor all prescriptions and refills.

Write legibly and check dosages and decimal points for accuracy.

(There are more than a thousand ―look-alike‖ drug names.)

Be aware of Physician‘s Desk Reference and package inserts, including Black Box Warnings. Obtain patient consent if there is a deviation from the recommended use, dosage or frequency.

Document the reasons.

Provide written information and instructions to the patient for medication usage. Include warnings such as: – – –

Side effects Adverse reactions When to contact the physician

Limit refills without an examination.

Make sure anyone writing or phoning in prescriptions gives complete dosage instructions to pharmacist and avoids ―take as directed.‖ Patients do not remember oral instructions.

Prescriptions and other written instructions must be legible. The phrase ―in writing‖ does not preclude the use typing out the prescription.

Copies of all prescriptions should be kept in the chart including written copies of phone orders.

The MagMutual Risk Management Handbook

80

Establish protocols for prescribing medication(s) when on call or covering for another physician.

Evaluate the patient‘s compliance with the drug regimen and document noncompliance.

Take precautions for some drug classes or specific drugs such as: – Birth control – Controlled substances – Theophylline – Anticoagulants Consult with other physicians treating the patient and be aware of any medication changes.

Monitor patients, particularly those on long-term medications, for adverse side effects such as: – – – –

Blood dyscrasia Drug dependency Hypotension Potassium depletion

Allow only trained personnel to administer certain drugs, chemotherapy, oxytocics, sedatives, etc.

Know the contraindications of drugs with certain conditions such as: – Age – Diabetes – Hypertension – Pregnancy Remember if you register as a dispensing practitioner, you must comply with all statutes and rules governing that practice, as well as the practice of pharmacy.

4. 6

RECOMMENDATIONS FOR VERBAL ORDERS TO HELP ENSURE PATIENT SAFETY Concerns Specific to Verbal Orders Verbal orders should be used only in emergency situations. Written orders can be faxed to nursing units or pharmacies to minimize the use of verbal orders (and improve turnaround time).

Verbal orders should not be accepted for chemotherapy. Such medications are never required for emergency use.

The MagMutual Risk Management Handbook

81

Prescribers should dictate verbal orders slowly and clearly.

Countless errors have been made with hurriedly called-in prescriptions that were misunderstood.

Verbal orders should be repeated back to the prescriber to clarify that the person receiving the order understood the order as the prescriber intended it. To prevent misinterpretation of soundalike drug names and numbers, drug names should be spelled out, and numbers should be expressed in single digits, such as ―one-five‖ instead of fifteen, or ―six zero‖ instead of sixty. Listen carefully to the read-back.

Orders should be complete and include the patient‘s age and weight.

Patient information is a necessary tool for pharmacists to distinguish between a normal dose and an overdose and to make sure that the correct drug has been interpreted.

Drug names should be spelled out. Many drugs sound alike; a few seconds taken when giving a verbal order can help ensure the patient receives the intended medication.

Give the condition being treated or purpose for the prescription.

The pharmacists can distinguish between sound-alike or lookalike drug names with this additional information.

Specify exact dosage strengths (i.e., milligrams) rather than dosage form units (e.g., ―tablets,‖ ―teaspoon,‖ etc.) When drugs are ordered without specifying the strength, any one of several available strengths could be mistaken for the intended one.

Do not use vague instruction such as, ―take as directed.‖ Specific instructions can help differentiate among many drugs which sound alike or look alike when written.

Numbers in the teens have the tendency to be confused in verbal orders (e.g., 14 as 40 or 13 as 30). Numbers in the teens should be expressed in single digits (i.e., ―one-four‖ units rather than 14 units).

It is extremely important that the pharmacist know the patient‘s allergies.

When entered into the pharmacy computer system, allergy information becomes a safety net with every prescription order.

Reference: Institute for Safe Medication Practices 300 West Street Road- Warminster, PA 18974 ISMPINFO@ISMP.ORG 1-800-FAILSAF

The MagMutual Risk Management Handbook

82

4. 7

PRECAUTIONS WHEN PRESCRIBING REFILLS The nurse calling in a prescription refill without physician approval is viewed as practicing medicine without a license. The public has become more aware of medication errors because ongoing media coverage on. Every physician should have processes in place to ensure safe practice when it comes to medication prescription refills. The chart should always be pulled prior to calling in a refill, and the phone calls along with the refill information should be documented in the chart.

Each office should require the nurse to obtain a written or verbal order from the physician prior to each refill. Each protocol should include the following: Which staff member is authorized to call in refills (should be the physician, physician extender per protocol, or a licensed nurse).

If it is the nurse, include a list of medications that the nurse is allowed to call in for a refill The number of times the prescription can be refilled before the patient must be seen by the physician Documentation of the order as ―Per Protocol Dr. Doe/nurse‘s name and professional designation, i.e. RN or LPN.‖ The chart is then given to the physician for review and signature of the order Allergies should be noted in a prominent way on the front of the chart and on the medication flow sheet. It is recommended that a medication flow sheet, with all medications listed, be used to prevent having to flip through progress notes to determine what medications the patient is taking. Flow sheets should be updated at each patient visit.

4. 8

GUIDELINES FOR CONTROLLING PRESCRIPTION VOCABULARY AND STANDARDIZING ORDER COMMUNICATION Do not use trailing zeros. For example, Coumadin should not be expressed as 1.0 mg. Expressed this way, it can appear as 10 mg, a 10fold overdose. Rather, this should be expressed as Coumadin 1 mg.

Oftentimes, the decimal point is not seen, especially with lined order forms, blurred fax copies of orders or when staffs transcribe the order this way by hand into a medical record.

Naked decimal points should not be used. For example, a bolus dose of lidocaine expressed as .5 mg/kg can easily be misread as 5 mg/kg. The decimal point will not be seen when forms are constantly copied, when it falls on a line or when it doesn‘t print

The MagMutual Risk Management Handbook

83

through on an MAR. This will eventually cause a 10-fold error and is, therefore, dangerous.

For quantities between 1 and 999, use the mg designation (i.e., 500 mg, not the decimal expression in grams, 0.5).

Do not use the apothecary or household measurement system, but rather use the metric system to express dose strength. For example, a dose for Tylenol should be expressed as 325 mg rather than gr V; one teaspoon should be expressed as 5 mL. Never abbreviate ―U‖ or ―u‖ for ―unit.‖ Spell it out (unit) using a lower case ―u.‖ Poorly written ―U‘s‖ have often been mistaken for zeros (8U regular insulin read as 80 units), causing 10-fold overdoses.

Never use the abbreviation qd (daily) or qod (every other day).

Both of these abbreviations have been misinterpreted as qid or four times a day. The abbreviation od (once daily) has also been misinterpreted as OD (right eye). In addition, the abbreviation i/d (once daily) has been misinterpreted as tid (three times daily).

Instead, ―daily‖ or ―every other day‖ should be written out and never abbreviated.

Never use the abbreviation sub q for subcutaneous. The ―q‖ has been mistaken for ―every.‖ For example, an order intended for heparin 5,000 units subcutaneously two hours before surgery (heparin 5,000 units sub q 2 hours before surgery) could be misinterpreted as heparin to be given every 2 hours before surgery.

Never use the abbreviation qn for qhs (every night/at bedtime).

These abbreviations have been misinterpreted as ―every hour‖ when poorly written.

Never use the abbreviation AU (each ear), as it has been misinterpreted as OU (each eye). Likewise, OU should also not be used, as it has been misinterpreted as AU. Never use the abbreviation TIW (three times a week), as this has been misinterpreted as tid (three times daily).

There should be a space between the number and its unit of measure when communicating drug orders because it is easier to read the number: Correct Incorrect 10 mg 10mg 100 mg 100mg Specific strength of ordered medication must be indicated (Tylenol 650 mg rather than Tylenol 2 tabs). When drugs are ordered

The MagMutual Risk Management Handbook

84

without specifying the strength, any one of several strengths could be the intended dose.

Complete drug (proper) names should be used. Written drug names should correspond to the name that actually appears on the drug package. This will avoid confusion at the time of drug administration.

Drug name abbreviations should not be used (MS, ASA, NS, etc.), as they may not be understood by all. For example, MS for morphine sulfate is repeatedly misunderstood as magnesium sulfate, and abbreviations for chemotherapeutic agents have often led to serious mix-ups that injure patients. Also, acronyms should not be used to present multiple drugs used in combination, such as those used in chemotherapy protocols. They are frequently misinterpreted.

When larger numbers are used (i.e., Mycostatin 100000 units), a comma must be inserted to make it easier to read (Mycostatin 100,000 units). When numbers at or over one million are used, they should be expressed as ―1 million‖ or ―1.5 million‖ to reduce the likelihood of misreading a dose with so many zeros.

Regulations in many states prohibit using dose ranges (i.e., Demerol 50-75 mg) for narcotics without also specifying the conditions under which dose ranges are to be administered (i.e., moderate/severe pain).

4. 9

PREPRINTED ORDER FORMS, STANDING ORDERS AND ORDER SETS Forms should not transfer responsibility from the prescriber to the nurse and pharmacist to determine contraindications for drugs due to allergies. For example, wording such as ―if patient allergic to Cefazolin, give------------------‖ or ―give------------- unless allergic to codeine‖ or ―Demerol 50 mg, if allergic use morphine‖ should be avoided. Particular caution is needed when using Toradol and other non-steroidal anti-inflammatory agents on standard forms.

Many professionals do not recognize the potential for serious cross-allergenic reactions between Toradol and aspirin. Also, since preprinted orders are ―routine‖ or care-mapped orders, allergies may be more easily overlooked. It would be safer if drugs at high risk for serious allergic reactions, such as IV antibiotics, non-steroidal anti-inflammatory agents and opiates, were not included on preprinted forms. If included, it should be required that the actual dose be filled in each time. Requiring a specific dose to be entered onto a standard form is a soft forcing function. It requires conscious thought by the prescriber whenever

The MagMutual Risk Management Handbook

85

the drug is used, and contraindications to the drug‘s use are more apparent to the prescriber.

Using brand names on preprinted order forms should be eliminated or minimized since changes may occur in suppliers, thus creating possible confusion. Use generic names and include the brand name in parenthesis only if the drug is a sole-source item.

Check all preprinted order forms for nomenclature and spelling errors. Even the slightest spelling error can result in the wrong drug being given when one takes into account that a significant number of similar drug names also have similar or identical dosing (e.g., Diphenhydramine 50 mg and Dimenhydrinate 50 mg).

There is no reason to abbreviate drug names, medical terms, etc. on preprinted order forms. It only causes confusion and can easily lead to errors.

Do not allow standard orders to ―renew all previous orders‖ as is sometimes found in standing postoperative orders. All drugs should be ordered separately on the order form.

Preprinted order forms should include soft forcing function to obtain all necessary drug and patient information at the time of prescribing. For example, chemotherapy order forms should include soft forcing functions to promote documentation of the following: height, weight, BSA, chronic conditions, allergies and pertinent lab values. Additionally, orders should be prescribed as a daily dose (rather than course dose), and the formula upon which the dose calculation was based (mg/kg or mg/m2) should be included for independent calculation of doses prescribed.

Avoid using preprinted order forms that are sponsored or prepared by pharmaceutical companies. Such forms may promote a specific product or may list non-formulary items. Blank order forms for use in preparing preprinted orders should be accessible only through authorized personnel.

Preprinted order forms should be approved through a formal process that includes critical review by the pharmacy and all involved departments.

Reprinted with permission of Institute for Safe Medication Practices 300 West Street Road Warminster, PA 18974 ISMPINFO@ISMP.ORG 1-800-FAILSAF

The MagMutual Risk Management Handbook

86

4. 10

CONTROLLED DRUGS AND PATIENT MANAGEMENT In a physician‘s practice, there may occasionally be an issue concerning a patient and controlled drug usage. Because liability is often associated with these patients, a system of control and management should be implemented to address these liability areas. This may be accomplished by restricting access to prescription pads and syringes.

When a patient with a potential drug abuse problem has been identified, the physician should effectively monitor the patient by implementing the following risk management techniques: Consider voluntary observations from family members regarding behavioral changes.

Assess periodically – – – –

Treatment goals Cause of pain (condition vs. addiction) Necessity of referral Efficacy of other treatment(s)

Require office visits for refills.

Review the record prior to renewing a controlled drug.

The physician should also adhere to the following guidelines when caring for a patient on a controlled drug: Annotate the patient‘s history regarding the condition for which a drug is prescribed.

Comment on the effect of conservative, less-addictive treatment(s).

Document the patient‘s informed consent to a treatment plan involving addictive drugs.

Note quantity of drugs prescribed, including total cumulative and average daily doses.

Lastly, a physician should report abusive patients by doing the following: Call the police.

Notify state drug and narcotics agencies.

The MagMutual Risk Management Handbook

87

Inform the Composite State Board of Medical Examiners if the patient is obtaining controlled substances from other healthcare providers.

This three-pronged approach of regular monitoring, documenting and reporting will help eliminate many of the problems associated with controlled drugs.

4.11

AMERICANS WITH DISABILITIES ACT The Americans with Disabilities Act (ADA) was enacted in 1990 and is one of the nation‘s most comprehensive civil rights statutes.

The basic requirements of this new law are simple to state. Private practitioners now have legal obligations: To accept patients with disabilities for treatment To provide ―auxiliary aids‖ when necessary for effective communication with patients with disabilities To make medical facilities physically accessible and usable by patients with disabilities if this is readily achievable The ADA protects individuals with disabilities and those who have recovered from a disability, such as recovered cancer patients or stroke victims. It also protects individuals who are not actually disabled, but who have been discriminated against because they are ―regarded as‖ having a disability, such as persons with facial deformities or persons who are HIV positive but have not developed AIDS symptoms.

Under Title II of the ADA, ―A physician may not discriminate in providing services to individuals with disabilities. A physician may not refuse to treat a patient, nor refuse to accept a new patient, because of the patient‘s disability.‖ ―A physician cannot lawfully refuse to treat a patient who is mentally retarded or whose speech impairment makes communication more time-consuming. A physician can, however, refer a patient whose disability itself creates special complications outside the physician‘s experience or knowledge.‖ The ADA also requires that physicians provide patients with ―auxiliary aids and services‖ to enable a patient with a disability to benefit from the services of the office. This obligation can be as uncomplicated as providing additional assistance to a patient who has difficulty disrobing and dressing. It may also encompass, however, provision of auxiliary

The MagMutual Risk Management Handbook

88

aids such as qualified interpreters, note-taking, brailed materials and other aids in order for the patient to communicate effectively with medical personnel at the office.

The information for this article was from the National Center for Law and Deafness. For more information, call the office of the Americans with Disabilities Act, U. S. Department of Justice, 202-514-0301 or (TDD) 202-514-0381; in Georgia call (Voice) 404-657-7313, (TDD) 404-657-9993.

4. 12

WORKING WITH MIDLEVEL PRACTITIONERS Adding midlevel practitioners (Midlevels) is steadily becoming the mainstream in physician practices. Although lawsuits against Midlevel‘s have been infrequent, the increased use of Midlevel‘s, coupled with the pressure of the current managed care environment, poses new liability exposures for physicians. This article deals specifically with risk management activities that reduce the physician‘s potential liability associated with employing Midlevels.

What is a Midlevel Practitioner?

Midlevels include, but are not limited to, physician assistants (PAs), advanced practice registered nurses (APRNs), nurse practitioners, nurse midwives, clinical nurse specialists and certified registered nurse anesthetists. Physicians who want to bring Midlevels into their practice must be aware of the training requirements, federal and state laws, and rules and regulations governing Midlevels as well as other issues to investigate while going through the interviewing and hiring process.

Liability Associated with Midlevels If the Midlevel is employed by the physician, such employee is considered an agent of the physician and therefore the supervision physician may be vicariously liable for such midlevel‘s acts or omissions. If the Midlevel is not insured under the physician‘s practice policy, the midlevel should show proof of adequate insurance coverage, and supervising physicians should notify their medical professional liability insurance carriers that they employ Midlevels.

Role of the Supervising Physician The supervising physician is responsible for making sure that all of a Midlevel‘s activities are permitted under a particular Midlevel‘s professional license and are conducted within the scope of specific clinical

The MagMutual Risk Management Handbook

89

responsibilities. Furthermore, the supervising physician is responsible for making sure that all such activities conform to the rules, regulations and policies of the healthcare facility, where the physician has privileges and that all patient services meet professional and facility standards of quality. Supervising physician should have training, be board certified or have hospital admitting privileges in a specialty appropriately related to the Midlevel‘s area of practice. State laws, rules and regulations dictate how many Midlevels one physician may supervise.

Supervising a physician assistant (PA) requires compliance with state laws and Medical Board Rules and Regulations.

Collaborating with a must be done in compliance with state laws, Medical and Nursing Board Rules and Regulations.

Credentialing AND LICENSING The hiring process should be documented fully. A Midlevel‘s credentials should be verified with original sources and permission obtained to conduct necessary background investigations. The midlevel must be a graduate of an accredited program and hold current certification by the appropriate national certification organization. In addition, the Midlevel must be currently licensed by the state in which he or she will be practicing. The re-credentialing process should be appropriate and timely.

Scope of Practice/Practice Protocols It is important that the office staff, on-call physicians and patients understand the midlevel‘s role and limits. All Midlevels should wear name badge identification and ensure that patients are not misled into believing they are physicians. Patients should also be provided with a mechanism to access the physician if necessary Physicians, who employ, hire or supervise midlevel practitioners/ are responsible for knowing applicable state law regarding a midlevel‘s legal scope of practice. This is especially true if the midlevel has prescriptive authority. In general, a licensed Midlevel may be allowed to perform a procedure for which he or she received formal education or additional training and, if necessary, has the proper protocol agreement filed with the state. In addition physician supervisors/collaborators must ensure that: Midlevels are supervised as required by state law

The MagMutual Risk Management Handbook

90

Standard procedures and protocols identify the boundaries within which the midlevel is allowed to practice The midlevel never practices beyond his or her skill level or scope of license The midlevel is encouraged to consult with the physician supervisor when the midlevel feels it appropriate.

The midlevel‘s clinical activities are limited to the scope of clinical privileges granted to the supervising physician.

Midlevels do not perform clinical activities under any physician not authorized as a supervising/collaborative physician.

With respect to nurse practitioners (NP) the scope of responsibilities is defined in a policy statement or collaborative agreement which every physician in the practice signs, especially those who may be called on to cover the APRN, and for whom the APRN will cover.

APRNs should have formal, written and current practice protocols which identify the most common problems likely to be encountered by the APRN, and specify conditions that are to be referred to or co-managed with a physician, and are signed by each APRN and physician on staff.

4. 13

RISK MANAGEMENT ISSUES IN TELEMEDICINE The use of telemedicine within the healthcare delivery system is experiencing unprecedented growth spurred by Federal support, managed care demands, the decreasing cost of the technology and the opportunity to provide access to medical care to areas of this country where previously unavailable. Using technology that ranges from simple telephones to satellites to state-of-the-art video conferencing equipment and high-tech links, telemedicine has created a variety of applications today in patient care, education, research and public health. However, with the advance in healthcare delivery comes risk to patient care and professional liability exposures to physicians and other healthcare workers. Although not altogether new, these areas of risk and liability exposure have taken on a new look.

The MagMutual Risk Management Handbook

91

New Technology Providers must become comfortable and proficient with the technology they will be using during the telemedicine encounter.

Where is everyone involved in the encounter on the learning curve with the technology?

Minimum requirements for the technology specifications of the equipment used must be established and standardized to fit the type of encounter. For instance, a dermatology consult requires a high-resolution camera and monitor where a psychiatric consult does not. Equipment used for static image consults, such as in radiology, requires certain types of technology. The American College of Radiology has established standards for teleradiology, but who is setting the standard for the type and quality of the equipment being used in other specialties?

Technology is changing so rapidly that, without minimum standards and specifications, the practice of telemedicine may not evolve congruently among users. A standard which is established by the clinical community which utilizes telemedicine will protect practitioners and patients.

Credentialing and Qualifications What are the credentials of the physician or other healthcare provider or who is presenting the patient?

Who credentialed them, and what are their credentialing criteria?

Is the working relationship between the two telemedicine healthcare providers compatible? Are styles similar enough that the encounter does not appear to the patient to have any conflict between such providers? Do the practitioners act as a team?

Has the referring doctor or healthcare provider teleconsultant (‗teleconsultant‖) been trained and credentialed in the use of the technology?

Is the staff at the referring site qualified to handle an emergency during the consult where you are directing treatment? Do you have proper emergency equipment?

Is the referring physician comfortable with the credentials of the teleconsultant? In the face of an injury brought on by a telecon-

The MagMutual Risk Management Handbook

92

sultant, the referring physician may be held vicariously liable for their actions.

As you have become comfortable with the credentials of physicians you consult with, now you must also become comfortable with the credentials and qualifications of your teleconsultants.

Do hospitals that host telemedicine sites credential the presenting physicians and give them some level of privileges? The hospitals could have vicarious liability for physicians practicing in their facility, and the consulting physician should have the assurance the presenting physician is qualified to perform his/her duties.

In a closed system, it is easy to set the qualifications and guidelines for those physician and non-physician practitioners working within the system. When telemedicine goes outside of a closed system, you lose control and should be at a higher level of awareness of the qualifications of those with whom you are working. You wouldn‘t send your patient to someone without knowing their qualifications; teleconsulting should be the same.

Informed Consent Under most state laws, the patient does not have to give informed consent for a telemedicine encounter. However, with this new system of healthcare delivery, it is important for the patient to have a complete understanding of risks and realistic expectations of the benefits and limitations of telemedicine. Therefore, obtaining informed consent from the patient is advisable.

Make the patient aware of treatment options to telemedicine, including traveling to the specialist and other acceptable alternatives.

At this early stage of telemedicine where the public may be skeptical and their level of acceptance is low, the physician may be held to a higher standard, as the courts may view telemedicine as experimental.

Make sure telemedicine is appropriate for the situation.

The patient needs to understand what the limits and benefits of telemedicine are in their treatment plan and accept the limitations of telemedicine.

The MagMutual Risk Management Handbook

93

Document the Encounter Not only should the exam, findings, treatment and instruction be documented as they would with any patient encounter, the environment used in the telemedicine encounter, including the equipment used and its specifications (i.e., resolution), should also be documented.

All caregivers who treat the patient should generate and maintain a medical record on each patient they encounter.

The rules for documenting patient care do not change with telemedicine. The medical record is still the first line of communication to you and subsequent treating practitioners and still the first line of defense in an allegation of professional liability.

When to Proceed & When to Stop Don‘t be afraid to stop a telemedicine exam or treatment if you, in your professional judgment, believe the patient would be best treated in person. Proceeding with an exam or treatment when there is a high possibility of misdiagnosis or treatment injury is not a new liability exposure.

However, proceeding with a telemedicine exam when a face-toface encounter is indicated adds an extra problem when faced with an injury.

Responsibility for Patient Treatment As with any consult or referral, discuss and clarify the roles and responsibilities of each practitioner prior to the patient encounter and clarify the arrangement to the patient.

Who has established the primary patient-physician relationship?

A referring physician may be held vicariously liable for the negligence arising from the acts of the teleconsultants. This theory of negligent referral is not new as applied to telemedicine, it just emphasizes the need to know your consultant and feel comfortable with their qualifications.

When is the Patient-Physician Relationship Created?

This is a fundamental issue with telemedicine that continues to be up to interpretation. It must be made clear to all, including the patient, as to who has responsibility for which part of the patient‘s care, treatment and follow-up.

The MagMutual Risk Management Handbook

94

If the teleconsultant acts as an advisor to the treating physician, a relationship with the patient may not have been created. The attending physician is still the one making the treatment decisions based on the advisor. If the teleconsultant is actually directing care and treatment of the patient, there is no doubt that a patient-physician relationship exists.

In most states, the existence of a patient-physician relationship is requisite to creating a legal connection between the parties, and thus a duty.

Personalize the System The teleconsultant must put forth an extra effort to establish rapport with the two-dimensional patient on the monitor.

The public may be accustomed to viewing TV, but they are not accustomed to real-time interaction.

Design both the transmitting and receiving rooms to be similar and make reference to objects or charts in the room to give the patient more of a feeling that you are there.

In some situations, the person uncomfortable with the encounter may not be the patient, but the physician or other practitioners.

Electronic Records and Confidentiality As part of a standard procedure, the teleconsultant and the referring physician must explain to the patient how telemedicine and the electronic transfer of medical information work. The safeguards of confidentiality on the transmission of the actual encounter, any recorded information and any hard copy documents should be explained.

The patient must be told who is viewing the encounter. If they feel their cyber exam is being viewed by others, they may not be honest during the exam or worse, may not seek care or follow-up.

Properly designed electronic record systems can provide greater protection for sensitive information than paper-based records.

Passwords for electronic record systems must be changed regularly and never shared. Employees should be asked to agree to and sign a Confidentiality Agreement.

The MagMutual Risk Management Handbook

95

Standard of Care for the Use of Telemedicine At what point will obtaining a telemedicine consult be considered a standard of care and, thus, create a duty? Some say the duty may be created now.

In Georgia, the requisite standard of care is defined as what is employed by the profession generally under similar conditions and like surrounding circumstances.

Therefore, if a teleconsultant is available in a rural area through a locally established telemedicine conferencing center, and the resource is not used as other physicians in the community utilize the resource; is this practicing below the standard of care? Is telemedicine, once established and proven effective, another resource that must be considered and utilized, if applicable, as you would refer to any specialist?

Licensure Telemedicine has the capability to substantially improve access to needed healthcare services and medical expertise.

However, the technology of telemedicine has evolved faster than applicable law.

Physicians and other healthcare workers are subject to the laws, rules and regulations of the state in which they practice. In most states, a physician is considered to be practicing medicine in the state where the patient is located. Therefore, if a physician teleconsults on a patient in another state, he or she will most likely be subject to that state‘s jurisdiction and licensure laws. Physicians who teleconsult should consider the following: The Federation of State Medical Boards and the American Medical Association has been in discussion as to the numerous licensure issues, but to date nothing has been decided upon toward the adoption of uniform standard and administrative requirements.

Will he/she have coverage for professional liability claims if they occur from a telemedicine encounter and the suit is filed in another state?

In which venue will the plaintiff be allowed to file the lawsuit?

The attorneys will likely choose the location most favorable to the plaintiff.

The MagMutual Risk Management Handbook

96

At this time it is advisable to be licensed in the state in which he or she resides and the state where the patient is being consulted.

4. 14

OFFICE-BASED SURGERY SAFETY A patient scheduled for office-based surgery (OBS) may believe that the procedure is minor, carries minimal or no risk, generally has a good outcome, and fixes the problem in a matter of minutes. Neither the patient nor the surgeon should have this misperception. A surgeon who performs OBS must manage all processes and implement all safeguards that are typically the responsibility of others in the ambulatory surgery center (ASC) or hospital operating room, in order to keep their patients safe and healthy.

Key areas of concern include: Failure to become accredited by the JCAHO, the American Association for Accreditation of Ambulatory Healthcare or the American Association for Accreditation of Ambulatory Surgical Facilities. Accreditation indicates that the facility at least meets minimum national standards for policies.

Use of antiquated anesthesia equipment that may not meet the ASA (American Society of Anesthesiologists) basic standard for intraoperative monitoring.

Failure to ensure routine preventive maintenance for all equipment.

A pharmacy that may be inadequate to treat unexpected complications including cardiac arrhythmia and brochospasm.

Absence of prearranged transfer protocols in the event that an emergency requires hospital admission.

Inadequately trained personnel especially in the area of monitoring the sedated patient, airway management and resuscitation techniques.

Polypharmacy (the simultaneous or sequential use of multiple pharmacological agents) is a common problem in prolonged procedures performed under ―conscious sedation.‖ The additive or synergistic effects of multiple sedative/opioid drugs may result in life-threatening respiratory depression. Additionally, polypharmacy may also lead to the inappropriate use of ―reversal agents‖ which typically have a shorter pharmacological half-life than that of the depressant drug. When reversal agents are employed, the patient may return to a sedated state in an unmonitored environment.

Inadequate skills in patient assessment for anesthesia.

The MagMutual Risk Management Handbook

97

Failure to adhere to national standards, including the ASA‘s ―Guidelines for Office-Based Anesthesia,‖ the ASA ―Statement on Qualification of Anesthesia Providers in the Office-Based Setting,‖ and the ASA ―Standard for Basic Anesthetic Monitoring.‖ Lastly, and most importantly, good equipment and effective drugs are safe only in the hands of well-trained professional personnel.

The surgeon operating in an office environment must recognize that he/she assumes multiple responsibilities that are assumed by the institution and/or the anesthesiology department in a hospital or ambulatory surgery center. Broadly, these responsibilities are to ensure that facilities, policies, procedures and personnel are adequate and appropriate for the type of surgery performed.

In particular, absent an anesthesiologist, the supervising physician should be especially trained in sedation, anesthesia and rescue techniques appropriate to the type of sedation or anesthesia being provided.

Whenever patients have elective surgery and anesthesia, they should be afforded a level of safety equal to that in the hospital environment.

Patients deserve no less, and we physicians must provide no less.

Risk Management Discussion Points for Office-Based Surgery One of the biggest and most recent changes in healthcare environment with the advent of managed care has been the move of many surgical procedures out of the hospital and ambulatory surgical centers and into doctor‘s offices. With this change, there are more physicians with little experience in handling powerful sedating drugs and little or no emergency equipment available to save patients who experience complications. There are only a few states that have addressed guidelines and requirements for the protection of the patient during in-office procedures.

Monitoring and Equipment Recommendations While surgical procedures are increasingly being moved out of the hospital and ambulatory surgical centers and into doctor‘s offices, there are no Federal requirements for the protection of the patient during in-office procedures. Only a few states have addressed this and implemented some requirements for office-based surgery. The American Society of Anesthesiologists (ASA) and The American College of Surgeons (ACS) have addressed this issue. The ASA has published Guidelines for Office-Based Anesthesia, and the ACS has published Guidelines for Optimal Office-Based Surgery. According to some of the ASA guidelines:

The MagMutual Risk Management Handbook

98

All facilities should have, at a minimum, a reliable source of oxygen, suction and resuscitation equipment and emergency drugs.

When using IV sedation, it is recommended that pulse oximetry be used.

All equipment should be maintained, tested and inspected according to the manufacturer‘s specifications.

Backup power sufficient to ensure patient protection in the event of an emergency should be available.

Healthcare Professionals Involved in Monitoring and Treatment It is extremely important for the facility to have written policies and procedures. These should include policies related to the credentialing of the personnel along with the procedures to be followed for monitoring patients during surgical intervention.

According to the ASA: All healthcare practitioners and nurses should hold a valid license or certificate to perform their assigned duties (a copy of the current license should be in their personnel file).

All operating room personnel who provide clinical care in the office should perform services commensurate with their levels of education, training and experience.

Surgeon‘s Responsibility and Liability/Anesthesiologist/Certified Nurse Anesthetists / Anesthesia PAs According to the ASA Guidelines for Office-Based Settings, anesthesiologists should participate in all office-based surgery as an important anesthesia safety standard. The ASA also recommends that if the regulatory requirements do not specifically state that an anesthesiologist must be involved in the care of the patient, then the supervising physician should be specifically trained in sedation, anesthesia and rescue techniques appropriate to the type of sedation or anesthesia being provided and to the office-based surgery being performed.

Familiarity with the effects and contraindications of the pharmacological agents being used is very important.

The supervising physician must recognize that no matter whether there is an RN, an anesthesia PA or a CRNA administering and monitoring a patient‘s sedation, they are all performing a delegated medical function under the direct supervisory responsibility of the physician. The

The MagMutual Risk Management Handbook

99

ACS‘ Optimal Guidelines for Office-Based Surgery states that general or spinal anesthesia must be supervised by a board-certified anesthesiologist, a physician eligible to take the anesthesiology board examination or a registered CRNA under physician supervision.

It is recommended that physicians who use the services of CRNAs should require the CRNA to have an ongoing quality assurance relationship with an anesthesiologist to provide regular review of their anesthesia practices.

Response to Emergencies All facilities that are performing office-based surgery should have written policies and procedures for all emergencies including cardiopulmonary emergencies and other internal or external disasters such as fire. All surgical personnel must be trained in basic life support (CPR) and must be recertified as required.

There should be a cardiopulmonary resuscitative cart available for emergencies, and at a minimum it should include an Ambu bag, a laryngoscope and a medication kit. The medication kit should include appropriate medications for treatment of anaphylaxis, cardiac arrhythmias and CPR. Postoperative Care/Transfer/Discharge Both the ASA and ACS recommend that every facility have written protocol for on-site recovery, arrangements for safe and timely transfer of patients to a prearranged acute care hospital when extended or emergency services are needed to protect the health of the patient and for patient discharge home.

When a patient is discharged home after a procedure, it is the responsibility of the physician to make sure the patient is recovered sufficiently to function independently. The patient should have stable vital signs and be fully oriented and able to move all extremities. When any type of sedation has been used, the patient should have a responsible adult take him/her home. Discharge instructions should be given verbally and in writing.

Conclusion While only a few states have imposed regulations and guidelines for office-based surgery, the American Society of Anesthesiologists, the American College of Surgeons and other organizations that are involved with outpatient surgery are excellent resources. With so many bad outcomes being reported by the press lately, coupled with MAG Mutual‘s experiences, we feel office-based surgery safety is something

The MagMutual Risk Management Handbook

100

that needs to be brought to the attention of all physicians performing surgery in the office environment.

References American Society of Plastic Surgery (ASPS), R. Iverson, MD and the ASPS Task Force on Patient Safety in Office-based Surgery Facilities, http://www.plasticsurgery.org/Documents/medicalprofessionals/health-policy/key-issues/Procedures-in-the-Office-basedSurgery-Setting.pdf Accessed October 2012 American Academy of Orthopedic Surgeons (AAOS); D. Wong, MD, S. Fountain, MD; Patient Safety in Office-Base Surgery. http://www2.aaos.org/aaos/archives/bulletin/feb05/fline1.asp American Society of Anesthesiologists, Publications, https://ecommerce.asahq.org/default.aspx?

American Society of Anesthesiologists, Guidelines for Office-Based Anesthesia, http://www.asahq.org/for-members/advocacy/statelegislative-and-regulatory-issues/office-based-surgery.aspx

SECTION 5 – LITIGATION 5.1

CLAIMS/INCIDENT REPORTING Reporting lawsuits, threats of legal action, claims and potential claims as soon as possible is a policy obligation and, more importantly, can assure efficient action by MAG Mutual. Action taken within the first few days or even hours after an injury has occurred can reduce the severity of a loss and possibly prevent a lawsuit. The claims representative will offer advice during this difficult time about how to achieve the best possible outcome.

Keep in mind that prompt reporting of claims under MAG Mutual‘s medical professional liability policy has no adverse effect on an insured physician‘s insurability, premiums or Loss Excellence Appreciation Discount.

A claims representative should be contacted: When suit papers are received. The physician‘s professional liability carrier must be informed immediately. (Failure to do so may result in a default judgment, and the physician may be personally responsible for the payment of that judgment.)

The MagMutual Risk Management Handbook

101

Whenever an attorney contacts a physician by phone or letter to discuss a patient‘s care. (There are no ―off-the-record‖ discussions.)

When any unexpected severe injury occurs, including, but not limited to: – – – –

Loss of limb Loss of bodily function Birth of neurologically impaired, handicapped or nonviable baby Any iatrogenic injury

When a patient threatens a lawsuit.

Whenever a subpoena is received involving another physician or hospital.

Regarding any correspondence from an attorney to a physician or the hospital requesting records or notifying him/her of a claim.

(Exception: We do not need to be called for any Workers‘ Compensation or automobile claims in which the physician is involved, unless the care he/she provided is in question.)

For any unexpected/unfortunate result if the patient is upset.

HIPAA permits a physician to disclose patient information to the physician‘s medical professional liability insurer for the purpose of establishing a defense against the patient‘s professional liability claim without patient authorization.

5.2

POST INCIDENT/DAMAGE CONTROL Early reporting to MAG Mutual Insurance Company gives us the opportunity for early review and evaluation and ―fast track‖ settlement, when appropriate.

Communication with the patient/family is extremely important.

Be open and honest with the family without admitting guilt. Maintain contact when necessary. Do not avoid their request to communicate.

DO NOT ALTER RECORDS. Altered records challenge the credibility of the entire medical record, they anger jurors, are used as leverage in settlements and draw punitive damages. Remember, for every altered record there is a copy of the original somewhere.

Late entries or corrections are appropriate if done correctly and have bearing on future medical care. Never place a late entry in a record to help explain what you did or why you did it. These en-

The MagMutual Risk Management Handbook

102

tries will likely be interpreted as self-serving. Please consult with your MagMutual Risk Management representative if you feel inclined to write a late entry.

Preserve any medical devices exactly as they were when the incident occurred. Place the equipment in a secured place and document your actions. Do not tamper with the equipment or attempt to recreate the situation. The equipment may need to be tested by a professional to determine if it contributed to the incident.

Save all packaging of accessories with printed lot number and accessories used at the time of the incident (e.g.., packaging of the actual Bovie pencil).

Do not ignore the patient or his or her family. You must keep dialog open, but tempered by instructions from your attorney or MAG Mutual Insurance Company claims representative.

Keep the patient‘s original chart in a safe place (e.g.., office safe) 1. Always have a copy of the record available for continued patient care.

Do not discuss the case with anyone other than your attorney or a claims representative at MAG Mutual Insurance Company.

NEVER SPEAK WITH A PATIENT‘S ATTORNEY, MEDIA AND/OR PRIVATE INVESTIGATOR WITHOUT FIRST NOTIFYING MAG MUTUAL INSURANCE COMPANY AND YOUR ATTORNEY (IF COUNSEL HAS BEEN RETAINED ON YOUR BEHALF).

Only release records pursuant to a proper written authorization or legal process.

Contact the MAG Mutual Insurance Company Claims Department anytime you receive court documents or correspondence from an attorney other than your own.

Keep in touch with the family and/or patient. If the patient or family loses contact with you and need questions answered, they may seek an attorney to help satisfy the need. Always seek direction from a MAG Mutual claims representative or Risk Management consultant in these matters.

Do not make private notes about the incident or case without guidance from your MAG Mutual claims representative or your attorney. These notes may not be protected from disclosure.

The MagMutual Risk Management Handbook

103

5.3

PHYSICIAN‘S GUIDE TO LITIGATION OF THE MEDICAL PROFESSIONAL LIABILITY CASE A medical professional liability lawsuit is a civil action filed against a physician or other healthcare provider in either state or federal court where the plaintiff (i.e., a patient) seeks recovery of money damages from the physician or healthcare provider (the defendant). In lawsuits based on negligence, the plaintiff usually alleges the defendant has failed to act as a reasonable person would act under similar circumstances, whether by acts or omissions. In a medical professional liability lawsuit, the allegations are usually more specific that the physician or other healthcare provider was negligent in providing or failing to provide proper medical care to the patient or otherwise breached some duty owed to the patient. In other words, the physician failed to meet the applicable standard of care. In certain cases, the plaintiff is not the patient but, rather, represents the patient‘s interests in litigation as a guardian, executor or other representative. This guide is designed to provide an overview of the litigation process, but if healthcare professionals have questions about how these concepts will apply to their situation, they should seek legal advice from a licensed attorney.

Commencement of the Lawsuit Lawsuits generally commence in two ways: 1. The defendant may be served personally with a copy of the Complaint and Summons by the local sheriff‘s deputy, the local marshal or private process server; or 2. The defendant may acknowledge receipt of the Complaint when requested by the plaintiff. We recommend physicians acknowledge service of the Complaint only on advice of MAG Mutual‘s Claims Department and never merely on the advice or demand of the plaintiff‘s attorney. When the physician has been served with process or has been asked to acknowledge service of the Complaint, the physician should immediately contact his or her medical professional liability insurer and forward a copy of all the lawsuit papers received to MAG Mutual‘s Claims Department. State and/or Federal law require the defendant to file a response to the Complaint with the court within a specific time period (usually 20-30 days) after the service of process.

The MagMutual Risk Management Handbook

104

Defense Attorney MAG Mutual will retain an attorney to represent the insured physician in defense of a lawsuit alleging damages covered by the insured‘s applicable insurance policy and pay the defense attorney‘s fees. The physician may request the insurer retain a particular defense attorney, and MAG Mutual will usually comply with the request as long as the attorney is on its list of approved defense attorneys.

While it is not normally necessary for a physician to retain his or her own attorney, some circumstances may rise where the claims representative or defense attorney recommends that the physician retain personal counsel. If the physician hires his or her own attorney, the assigned defense attorney will continue to handle the defense of the lawsuit.

Initial Pleadings The Complaint is a pleading filed with the court that sets forth the facts on which the plaintiff‘s claim is based and generally states the plaintiff‘s contention of how the standard of care was breached. Complaints are not typically written with a high degree of specificity. They are only required to set forth detail sufficient to place the defendant on notice as to the plaintiff‘s claim. In Georgia, the plaintiff who files a medical malpractice action is required to file with the Complaint an affidavit of an expert (―Expert Affidavit‖), setting forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.

The Answer is the defendant‘s response to the Complaint and generally must be filed within 20-30 days of service of the Complaint, depending upon the court in which the case arises. A lawsuit will go into default if the defendant fails to file an Answer within the time required.

When a case goes into default, the defendant is deemed to have admitted the allegations contained in the Complaint, and the plaintiff would simply prove his or her damages to obtain a judgment against the defendant. Thus, it is critical for insured physicians to notify MAG Mutual immediately when they are served with a Complaint and Summons or are asked to acknowledge service. In an Answer, defendants admit those allegations they agree are true, deny those allegations they deem to be false or state they lack sufficient information to admit or deny a particular allegation (which is taken as a denial). The defendant must also raise in his or her Answer any affirmative defense(s) he or she may have to the lawsuit. Affirmative defenses are not simply denials of the plaintiff‘s claims, but are statutory defenses that would defeat the claim even if the defendant‘s conduct constituted negligence. For example, if a plaintiff files a lawsuit after the statute of limi-

The MagMutual Risk Management Handbook

105

tations has expired, the defendant should raise the issue as an affirmative defense to the claim.

Expert Affidavit The expert providing the plaintiff‘s affidavit must also have had actual professional knowledge and experience in the practice or specialty in which the expert‘s opinion is to be given. Such knowledge and experience may be gained by active practice or teaching at an accredited educational institution in the expert‘s specialty for at least three of the last five years prior to the plaintiffs alleged injury forming the basis of his or her lawsuit.

Curing a Defective Affidavit If a defendant believes the plaintiff‘s affidavit is defective he or she may file a motion to dismiss the plaintiff‘s lawsuit contemporaneously with his or her answer, specifying such defect(s). The plaintiff must cure such defect(s) within 30 days of service of the defendant‘s motion.

Dismissal of a Medical Malpractice Action A medical malpractice action is subject to dismissal if the defendant files a motion to dismiss that the plaintiff failed to: File the requisite expert affidavit.

Cure an alleged defect(s) in the affidavit within 30 days after service of the defendant‘s motion to dismiss.

Discovery Discovery is the process that commences after the filing of an Answer and is used by litigants to obtain evidence known to the opposing party or various witnesses. Discovery respondents are generally required to provide only that information which is known to or available to them.

They are not normally required to go to third parties (except perhaps their own employees or partners) to obtain information for the response. The defendant physician should respond to a discovery request only through his or her insurer-assigned defense attorney. The benefit of conducting discovery is that parties can minimize surprises at trial or better assess the relative strengths and weaknesses of their cases prior to trial. The most common methods of discovery are Interrogatories, Requests for Production of Documents, and Requests for Admissions, and Depositions.

The MagMutual Risk Management Handbook

106

Interrogatories are simply written questions submitted by one party to another before trial. The answers to the Interrogatories are submitted in writing under oath and can be used as evidence at trial, so the answers must be truthful. Requests for Production of Documents are similar to Interrogatories, but as the name implies they request the recipient to produce certain identified documents and items rather than requesting answers to written questions. Requests for Admissions simply request the recipient to admit certain statements, but the recipient may deny them as appropriate. Each of these requests has a period of time within which the response must be provided, although procedures are available to extend the time within which the response must be provided, although procedures are available to extend the time within which the response is due (through agreement of the parties or by motion filed with the court).

A deposition is the pretrial oral testimony of any person given under oath. While this testimony is similar to that provided in open court during a hearing or trial, there are a few differences. For instance, the judge will not be present, so immediate rules on objections or evidentiary issues will not be possible. Furthermore, objections, except as to the form of a question and other evidentiary rules, are generally waived during a deposition, while they most certainly are not waived in court.

Additionally, evidence that may not be admissible in court may be fair game during a deposition as long as it is relevant or is reasonably calculated to lead to relevant information. During a deposition, all attorneys present have the right to question the witness.

The questions and answers are recorded by a court reporter that will transcribe them and provide a copy of the transcript to all attorneys who order it from the court reporter. If and when the defendant physician is called upon to provide deposition testimony, the physician and his or her insurer-assigned defense attorney should thoroughly discuss the potential testimony and other issues involving the deposition in advance.

Resolution Methods The three most obvious resolutions of a lawsuit are dismissal, settlement or a trial. In some cases, however, the parties may agree to mediation or arbitration, which are forms of alternative dispute resolution.

Mediation is simply a matter of formal negotiation where an appointed or agreed upon mediator works with the parties and their attorneys to reach settlement. Because mediation depends on the parties‘ agreement to settle, there can be no guarantee that mediation will result in resolution of the dispute in all cases.

The MagMutual Risk Management Handbook

107

Once the parties formally agree to a compromise through mediation, that agreement may become binding and enforced by the appropriate court.

Arbitration, on the other hand, is conducted through attorneys presenting their cases to one or more arbitrators who issue a ruling on liability and damages.

Arbitration is conducted in a manner similar to a trial, but the setting is more informal. An arbitration ruling does not have the same effect as a court‘s judgment. Although the parties may agree that the arbitration ruling will be binding, it is not binding or enforceable without such an agreement. In fact, nonbinding arbitration is used more frequently than binding arbitration in professional liability cases. What is the advantage of conducting an arbitration that is nonbinding? It can give the parties an objective assessment of their case and can often form the basis for productive settlement negotiations.

Settlement Large jury verdicts make sensational news. However, the vast majority of lawsuits never even go to trial, much less result in large jury awards.

Granted, the frequency and severity of payments made in conjunction with medical professional liability claims has risen through the years, but the fact is few lawsuits result in million-dollar jury verdicts. Rather, most cases are dismissed or settled by the parties sometime during the litigation process and may even be settled after the start of trial.

In negotiating a settlement, attorneys for physician defendants usually consider such factors as the medicine involved in the patient‘s care, the relative strength of any potential witnesses and their testimony, the amount of money a plaintiff would accept in settlement as compared to the sum a jury might award, and the wishes of the physician defendant.

Trial On average, lawsuits proceed to trial about 1½ to 2½ years after filing.

When lawsuits have been pending for enough time in the court‘s estimation to be ready for trial, the case will be placed on a trial calendar (which usually runs from one to three weeks and includes other cases the court expects to be ready for trial). Parties may think that trial would be scheduled in advance for a specific date and time. However, litigants of all cases listed on the trial calendar are effectively on-call to commence their trial upon notice from the court for the duration of the calendar. While parties and counsel are usually given at least 24 hours‘ notice, judges may notify and expect litigants to appear within a

The MagMutual Risk Management Handbook

108

few hours. In some cases, the Court may grant a special setting for trial to begin on a date certain.

While medical professional liability cases may be tried as bench trials (where the judge hears the case without a jury) or jury trials, the overwhelming majority will be jury trials. The first step in the jury trial is to strike a jury. A panel of prospective jurors is brought into the courtroom, and the judge and attorneys are allowed to pose various questions to persons on the panel. The purpose of this question-andanswer session, known as voir dire, is to uncover any potential conflicts of interest, biases, prejudices and other factors that might make them unqualified to serve as a juror on the case at trial. Parties are allowed to strike a limited number of persons from the jury, and six or twelve persons not stricken from the panel will form the jury.

Once the jury is set, the parties give Opening Statements wherein they outline the case for the jury. They explain what kind of evidence is expected to be presented and basically set the stage for the trial. Next, the plaintiff will present evidence through the direct examination of witnesses and introduction of documents and other evidence. The defendant may cross-examine each witness called by the plaintiff. When the plaintiff concludes its case, the defendant may move for a directed verdict, essentially saying the plaintiff has failed to prove its case. If the judge grants that motion for directed verdict, the trial is over. If the judge denies the motion, then the defendant presents evidence, again through direct examination of witnesses and introduction of documents and other evidence, and the plaintiff may cross-examine each witness called by the defendant.

At the conclusion of the defendant‘s case, the attorneys give their Closing Arguments. In contrast to the Opening Statement, which is intended to be objective, the Closing Argument is the attorney‘s opportunity to summarize the evidence and make arguments on how the evidence proves his or her client‘s case.

Following Closing Arguments, the judge would read a series of jury instructions to the jury to guide them in their deliberations. The instructions are carefully chosen to explain the law as it applies to the evidence presented at the trial. Thereafter, the jury discusses the evidence and arrives at a decision on the issues presented to them. The jury will be required to apportion fault among the defendants, the plaintiff and certain non-parties. If the verdict is rendered in favor of the plaintiff, the jury will award an amount of money they deem sufficient to compensate the plaintiff for the injuries sustained. Any award entered by the court will reflect an apportionment of damages based on the relative fault of the parties involved as determined by the jury.

If the plaintiff is 50 percent or more at fault for the injuries claimed, the plaintiff will not be able to recover any damages. At this point, the

The MagMutual Risk Management Handbook

109

losing party may file motions for a new trial or to set aside the verdict, based on applicable law.

Appeal After judgment has been entered, the losing party may file an appeal.

If the grounds for appeal is simply that the appellant disagrees with the finding of the jury that appeal is likely to fail, since appellate courts almost never substitute their judgment for a jury‘s judgment. Successful appeals are generally based on some legal error (such as incorrect jury instruction) that occurred during the trial.

Reports Requisite reports are made to the National Practitioner Data Bank and State Medical Board when any settlement or judgment is paid on behalf of a physician, regardless of the dollar amount. The Health Care Quality Improvement Act of 1986 requires any entity which makes a payment on behalf of a physician or other licensed healthcare practitioner in settlement of, or in satisfaction in whole or in part of, a claim or judgment against the physician to report the payment to the National Practitioner Data Bank.

5. 4

LEGAL GLOSSARY Abandonment - The inappropriate termination of a patient-physician relationship by the physician without reasonable notice to the patient and without an opportunity for the patient to acquire additional medical care, which may result in some type of injury to the patient.

Additur - A sum of money added to the jury verdict by the judge at his/her discretion to reach a just result, with a new trial as the alternative if the defendant does not agree.

Admission - A statement or act that amounts to a prior acknowledgment by a party of a relevant fact.

Affidavit - A written statement made or taken under oath before an officer of the court or a notary public or other duly authorized person.

Advance Medical Directive – Oral or written statements or documents by a competent individual regarding his/her future healthcare decisions (e.g., a living will or a durable power of attorney for healthcare).

Agency – A relationship between two persons in which one person/party authorizes the other to act for or represent that person/party.

The MagMutual Risk Management Handbook

110

Allegation – An assertion, claim or statement of a party to an action, made in a pleading, setting out what he expects to prove.

Amicus Curie – Friend of the court; one who is not a party to a lawsuit and gives information to the court on some matter of law that is in doubt or might otherwise escape the court‘s attention. This information may be provided in a legal document known as an amicus brief.

Answer – The principal pleading by the defendant in response to the plaintiff‘s complaint.

Apparent Authority – Doctrine under which the principal (i.e., hospital) is liable for its agent (i.e., physicians) regardless of whether the agent is actually employed by the principal because the principal represented or ―held the agent out‖ to be his employee and the third person (i.e., a patient) relied on this representation.

Appeal – An application to a superior (i.e., appellate) court to review the decision of an inferior (i.e., trial) court or administrative agency.

Appellant – The party that appeals to a higher court and who is opposed by the appellee.

Appellee – The party that was successful in the lower court and who is defending an appeal commenced by an appellant.

Arbitration – The referral of a dispute to an impartial third person chosen by the parties to the dispute. A hearing is held at which both parties have an opportunity to be heard.

When the parties agree in advance to abide by the arbitrator‘s decision, it is called Binding Arbitration.

Assumption of the Risk – Doctrine or defense whereby a person cannot legally recover for an injury received when he voluntarily exposes himself to a known risk.

Battery – An unauthorized, harmful or offensive touching of another person.

Bench Trial – A trial without a jury and the judge determines the facts as well as the law.

Brief – A written argument prepared by an attorney for the court that summarizes a case and tells how specific laws are relevant to the case.

The MagMutual Risk Management Handbook

111

Captain of the Ship – A common law doctrine that may make the physician in charge of a medical team liable for the negligent acts of the members of the team, even though these members are hospital employees.

Causation – Existence of a connection between the act or omission of the defendant and the injury suffered by the plaintiff.

Civil Action – An action maintained to protect a private, civil right, or to compel a civil remedy, as distinguished from a criminal prosecution.

Claim – A threat to sue or demand for money or for other compensation.

Common Law – Legal principles derived from court decisions rather than from statutory law.

Comparative Negligence – Doctrine of law that allows the plaintiff to recover damages if his/her negligence is less than that of the defendant. He/she cannot recover if his/her negligence equals or exceeds the defendant‘s negligence.

Competency – Possessing those characteristics that render a witness legally fit and qualified to testify.

Complaint – The initial pleading by the plaintiff that sets forth the facts on which the claim for relief is based. It may be attached to the summons given to the defendant.

Consent – Voluntary agreement (i.e., to a recommended medical procedure).

Contingency Fee – The fee agreement frequently entered into by the plaintiff‘s attorney where the client will pay the lawyer a percentage of the recovery, if there is a recovery, but the plaintiff pays nothing if there is no recovery, except costs.

Contract – An agreement between two or more persons that creates an obligation to do or not to do a particular thing.

Contributory Negligence – A legal doctrine that if the plaintiff in a civil action for negligence was also negligent, he/she cannot recover damages from the defendant for the defendant‘s negligence.

Counterclaim – A counter demand made by a defendant against the plaintiff.

The MagMutual Risk Management Handbook

112

Covenant-Not-To-Sue -- A partial release by the plaintiff that involves the plaintiff‘s giving up the claim for money damages against a specific defendant but without giving up the claims against other defendants.

It is used when the plaintiff settles against only one defendant without abandoning proceedings against other defendants.

Cross-Claim – A claim by one party against another party on the same side of the litigation (i.e., a claim by a defendant against a codefendant).

Cross-Examination – The questioning of a witness in a trial, or in the taking of a deposition, by the party opposed to the one who produced the witness, concerning matters about which the witness has testified during direct examination.

Damages – Monetary compensation awarded to the person injured by the tort of another person.

Decedent – The deceased, usually refers to the injured party who would have been described as the plaintiff if still living (i.e., in a wrongful death lawsuit the plaintiff may be the administrator or executor of the decedent‘s estate).

Defamation – Willful and malicious communication that is false and injures the reputation or character of another. A written defamation is libel, and an oral defamation is slander.

Default Judgment – Judgment entered against a defendant who fails to answer a complaint timely.

Defendant – The party being sued.

Defense Attorney – The lawyer who defends the person being sued.

De Novo – Anew, afresh. A ―trial de novo‖ is the retrial of a case.

Deposition – A pretrial discovery procedure conducted under oath that involves a question-and-answer session of any party or possible witness by the opposing party. The person whose deposition is being taken is called the deponent.

Directed Verdict – Ruling by the trial judge without jury consideration, that, as a matter of law and based on the facts, the verdict must be in favor of a particular party. This is usually in favor of the defendant based on the inadequacy of the evidence presented by the plaintiff.

Direct Examination – The initial questioning of a witness by the party who called the witness.

The MagMutual Risk Management Handbook

113

Discovery – Pretrial procedures by which one party gains information held by another party. Such procedures include depositions and interrogatories. The intent is to minimize surprises at the time of trial.

Dismissal With Prejudice – Bars the right to bring or maintain an action on the same claim or cause.

Dismissal Without Prejudice – Has no effect on a party‘s rights in remedy and permits the complainant to sue again on the same cause of action.

Due Process – Course of legal proceedings according to those rules and principles that have been established in systems of jurisprudence for the enforcement and protection of private rights. It often means simply a fair hearing.

Duty – An obligation, recognized by law, owed by one person to another person.

Evidence – All the means (e.g., testimony, records, documents or material objects) used to prove or disprove an alleged matter of fact.

Exception – A formal objection by a lawyer to an order or ruling of the court (judge) implying that the objector does not acquiesce or agree with a ruling made by the court in the matter under consideration. This may set the grounds for a future review by a higher court if the case is appealed.

Executor – The person appointed to carry out the directions and requests in the will of the decedent.

Expert Evidence – Testimony given in relation to some scientific, technical or professional matter by experts (i.e., persons qualified to speak authoritatively by reason of their special training, skill or familiarity with the subject).

Fiduciary – A person in a position of confidence or trust who undertakes a duty to act for the benefit of another under a given set of circumstances. For example, a trustee owes a fiduciary duty to the beneficiary of the trust.

Fraud – The misrepresentation of a material fact relied upon by another person to his or her injury. Claims for fraud may involve misrepresentation, deception or suppression of the truth.

The MagMutual Risk Management Handbook

114

General Damages – Damages awarded for the injured person‘s intangible suffering (e.g., pain and suffering, loss of earning capacity and loss of reputation).

Hearsay – An out-of-court assertion (statement or conduct) of fact or belief that does not proceed from personal knowledge of the witness offered to prove the truth of the matter asserted. Hearsay is generally inadmissible because it relies on the truth and veracity of outside persons not present for cross-examination. There are, however, numerous exceptions to the hearsay rule.

Hold-Harmless Agreement – A contractual arrangement in which one party agrees to relieve the other party of any liability that may result from a particular situation. This agreement does not relieve or excuse the wrongdoer from liability, but merely transfers the risk by requiring another to respond to reimburse for damages.

Hypothetical Question – A question posed to an expert witness during a trial, based on assumptions and acts already introduced into evidence that calls for an opinion from the expert witness.

Immunity – In civil law, protection or special privilege given certain individuals (personal immunity) or groups (institutional immunity) that may shield them from liability for certain acts or legal relationships (i.e., psychiatrist-patient privilege) or charitable immunity.

Impeachment of a Witness – An attack on the credibility of a witness.

Implied Contract – Implied by law, based on manifestations of assent other than oral or written language (i.e., by conduct). The patientphysician relationship is considered an implied contract.

Incapacity – Inability to exercise an inherent right or carry out a transaction due to, for example, a disability.

Inadmissible – That which, under established rules of evidence, cannot be admitted or received (i.e., some hearsay evidence).

Incident – Any unfavorable event that may give rise to a claim.

Indemnity – The right that exists between persons who have a joint liability to a plaintiff to recover between themselves money that one of them may have been required to pay the plaintiff.

Independent Contractor – Generally, one who contracts to do certain work according to his own means and methods and is subject to

The MagMutual Risk Management Handbook

115

his/her employer‘s control only as to the end product or final result of the work being performed.

Injunction – Court order commanding a person or entity to perform or to refrain from performing a certain act or otherwise be found in contempt of court.

Intentional Infliction of Emotional Distress - Extreme and outrageous conduct by the defendant with an intent to cause the plaintiff severe emotional distress (i.e., the mishandling of a corpse).

Intestate – A person who dies without a will.

Informed Consent – Consent obtained after the disclosure of certain facts or information (i.e., consent obtained for a recommended medical procedure after the risks of the procedure were disclosed).

Interrogatories – A pretrial discovery tool in which one party submits written questions to the opposing party who must answer by written reply under oath.

Joint and Several Liability – Liability that makes each defendant liable to the plaintiff for the entire amount of damages incurred. The principle of joint and several liability was repealed in Georgia in 2005 in favor of an apportionment of damages statutory scheme, under which defendants are liable only for their share of the damages, as apportioned by the jury.

Judgment – The final decision of the court resolving the dispute and determining the rights and obligations of the parties.

Leading Question – A question posed by a trial lawyer that is usually improper on direct examination because it suggests to or prompts the witness to give the desired answer.

Liable – To be responsible for or obligated in law.

Libel – A method of defamation expressed in print that, when publicized, damages another person‘s reputation.

Loss of Consortium – A claim for damages by a spouse suing because a wrongdoer injured that person‘s husband or wife. It includes damages for such intangible things as loss of care, comfort and society and interference with sexual relations.

The MagMutual Risk Management Handbook

116

Malicious Prosecution – An action instituted with the intention of injuring the defendant, without probable cause, and terminates in favor of the person prosecuted.

Malpractice – Failure to exercise the same degree of care, skill and diligence as other similarly situated healthcare providers in the same general line of practice ordinarily have and exercise in a like case.

Material Evidence – Evidence that is pertinent to the issue in dispute.

Matter of Fact – A point that must be decided on the factual testimony of witnesses regarding their perceptions or by other direct evidence acceptable to the court.

Matter of Law – A point that must be decided on the basis of either applicable statute or decisions of case law.

Misrepresentation – An untrue statement of fact.

Mistrial – A trial terminated and declared void prior to the return of the verdict; a trial that cannot stand in law because of lack of jurisdiction, wrong drawing of jurors, or disregard of some other fundamental requisite; inability of a jury panel to reach a unanimous decision.

Moot – An issue is moot when circumstances or events have made determination of the issue unnecessary, and/or the issue has already been resolved.

Motion – A written or oral application to the court requesting an order or ruling in favor of the applicant.

Negligence – The failure to exercise that degree of care that a reasonable person would exercise under the same or similar circumstances.

Next Friend – One who, although an appointed guardian, acts on behalf of a party (i.e., a minor, who is unable to look after his own interests).

Objection – The act of taking exception to some statement or procedure in trial. Used to call the court‘s attention to improper evidence or procedure.

Parties – The persons who are actively concerned in the prosecution or defense of a legal proceeding. Parties may be natural persons or may be legal entities such as partnerships, professional corporations, etc.

The MagMutual Risk Management Handbook

117

Partnership – Contractual state resulting from the agreement of two or more associates (i.e., partners) to engage in a commercial enterprise for the benefit of all copartners and to share the profits and losses proportionally.

Peer Review – The procedure by which professional healthcare providers evaluate the quality and efficiency of services ordered or performed by other professional healthcare providers. O.C.G.A. § 31-7131 Perjury – Willful giving of false testimony under oath.

Peremptory Challenge – The challenge that the prosecution or defense may use to reject a certain number of prospective jurors without assigning any cause.

Plaintiff – A person who brings an action; the party who complains or sues in a personal injury action and is so named on the record.

Pleading – Statements, in logical and legal form, of the facts that constitute the plaintiff‘s cause of action (claim) and defendant‘s ground of defense (response). These are filed with the court clerk, and copies are sent to attorneys for parties to the suit.

Preponderance of the Evidence – Evidence that as a whole shows the fact sought to be proved is more probable than not.

Prima Facie Case – A case with sufficient evidence to survive a directed verdict and require the defendant to proceed with his evidence.

Prejudicial Error (Reversible Error) – One that affects the final results of the trial and may provide grounds for a new trial and reversal of judgment.

Privileged Communications – Statements made within a legally protected relationship (e.g., patient-psychiatrist, attorney-client) that are generally subject to disclosure under legal pressure.

Proximate Cause – An act or omission, which, in a natural and continuous sequence, absent any intervening acts, produces an injury.

Punitive Damages – Damages which are awarded to punish a wrongdoer for willful, reckless or malicious misconduct and to deter similar misconduct by making an example of the wrongdoer (punitive damages are also known as exemplary damages).

Rebut – To refute or disprove.

The MagMutual Risk Management Handbook

118

Rebuttable Presumption – A presumption that can be overcome by the introduction of contrary evidence.

Redirect Examination – Follows cross-examination and is exercised by the party who first examined the witness.

Res Ipsa Loquitur – ―The thing speaks for itself.‖ An inference that the defendant was negligent which arises upon a showing that the defendant was in control of the instrument that caused the plaintiff‘s injury.

Testimony by an expert witness is not required, as the negligence must be so clear and obvious to a lay person that the injury would not have occurred absent such negligence.

Respondent Superior – A doctrine that means the master (i.e., employer) is liable for his servant‘s (i.e., employee‘s) wrongful acts.

Settlement – An agreement made between the parties to a lawsuit or claim resolving their legal dispute without judicial resolution.

Slander – Oral defamation; the speaking of false and malicious words that damage another person‘s reputation.

Special Damages – Damages that actually ―flow‖ from the wrongful act (e.g., medical expenses, loss of income and property damage).

Statute of Limitations – The time period fixed by law in which a plaintiff can file a lawsuit.

Strict Liability – Liability without fault; often concerns consumer product liability.

Standard of Practice (Standard of Care) – Under this standard, a physician can be liable for failure to adhere to those standards of practice exercised by reasonably prudent physicians with the same degree of care, skill and diligence as other similarly situated healthcare providers in the same general line of practice ordinarily have and exercise in the like case.

Stipulation – An agreement, admission or concession made by parties in a judicial proceeding or by their attorneys relating to business before the court (i.e., an agreement to extend the time period for pleading).

Stipulations must be either in writing or on the record to be binding on the parties.

Subpoena – A court order to appear at a certain time or place to give testimony upon a certain matter.

The MagMutual Risk Management Handbook

119

Subpoena Duces Tecum – A subpoena issued by the court, upon request of a party, requiring a witness to bring to court or to a deposition any relevant documents that are under control of the witness.

Suit – A formal complaint or lawsuit filed with the court.

Summary Judgment – A judgment rendered by the court prior to a verdict on a motion by either party to the lawsuit, when there is no genuine issue as to material fact, and the moving party is entitled to a judgment as a matter of law.

Summons – A writ directing the sheriff or other officer to notify the named person that an action has been commenced against him in court and that he is required to appear, on the day named, and answer the complaint in such action.

Testimony – A statement made by a witness under oath.

Tort – A civil wrong or injury for which the court will provide a remedy in the form of an action for damages resulting from intentional reckless or negligent misconduct (e.g., battery, trespass, fraud, negligence and defamation).

Tortfeasor – Wrongdoer or one who commits or is guilty of a tort.

Transcript – The official record of proceedings of a trial or hearing.

Trial Court – The court of original jurisdiction (i.e., the first court to consider the lawsuit or claim).

Trier of Fact – The jury or the judge in nonjury trials.

Venue – The particular county, city or geographical area in which a court with jurisdiction may hear and determine a case.

Verdict – The formal decision of finding made by a jury or judge where there is no jury, on a question of fact.

Vicarious Liability – Liability imputed upon one person for the actions of another (i.e., the physician in some instances may be vicariously liable for the acts of nurses employed by the physician).

Voir Dire – Voir dire generally refers to the preliminary questioning of prospective jurors. Depending upon the court, attorneys for the parties may be allowed to conduct voir dire, or such questioning may be conducted solely by the judge. Voir dire also can be used to refer to preliminary examination of a witness (particularly an expert witness) as to his/her qualifications to testify.

The MagMutual Risk Management Handbook

120

Wanton – Conduct which, by its grossly negligent, malicious or reckless nature, evinces a disregard for the consequences or for the rights or safety of others.

Work Product – Any materials prepared by an attorney in anticipation of litigation or for trial including private memoranda, written statements of witnesses and mental impressions of personal recollections formed by the attorney. These materials are usually protected against discovery.

Wrongful Birth – An action brought by parents who seek damages for the birth of a child. Wrongful Birth actions are not recognized in Georgia.

Wrongful Death – An action brought by a surviving spouse, children or parents who seek damages for the death of a person caused by the wrongful acts of another.

Wrongful Life – A tort action concerning childbirth, such as the birth of an unplanned or unwanted child after the negligent performance of a sterilization procedure or the birth of a child with serious defects due to the doctor‘s failure to advise the parents properly about such defects. Not currently recognized in Georgia.

SECTION 6 – LEGAL/Regulatory 6.1

GOOD SAMARITAN LAWS Many state laws create immunity for individuals acting in good faith and without compensation when there is an emergency. There are often state-specific guidelines for professionals when acting under a Good Samaritan statute; for example, in some states a practitioner must stay with a patient until care is transferred to other competent professionals. Perpetrators of wanton, willful or gross negligent acts are not shielded from a negligence action via the Good Samaritan immunity. Good Samaritan laws often don‘t apply to a person rendering emergency care, advice, or assistance during the course of regular employment, such as services rendered by a healthcare provider to a patient in a healthcare facility.

It is important that physicians and other healthcare providers work with their malpractice insurance carriers to develop guidelines to help ensure that insurance coverage of Good Samaritan immunity exists for acts outside of the providers‘ normal work settings.

Reference: Risk Management Handbook for Healthcare Organizations, Roberta Carroll, Sylvia M. Brown, Vol. 2 Clinical Risks, page 563.

The MagMutual Risk Management Handbook

121

6.2

EMTALA DUTIES OF ON-CALL PHYSICIANS; PENALTIES The Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA) or what is commonly referred to as the ―anti-dumping‖ statute is designed to prevent hospitals from denying emergency medical care to indigent patients from their emergency rooms without an appropriate medical screening and stabilization, although EMTALA extends even to patients who are not indigent. While EMTALA principally requires hospitals that receive Federal funds to perform certain acts, it has significant meaning for physicians who are on call to the emergency room of such hospitals as well. EMTALA also applies to physicians connected with a ―dedicated emergency department‖ of facilities owned and operated by a hospital. It does not apply to doctor‘s offices, public health centers, day surgery clinics or any other facilities that are not owned by a hospital or that do not share the same Medicare provider number as the hospital. EMTALA requires hospitals to maintain a list or roster of on-call physicians who are on call and available to provide care for patients with emergency medical conditions.

One of the purposes of the on-call list in a hospital is to ensure that the Emergency Department (ED) is aware of which physicians, including specialists and subspecialists, are available to provide treatment necessary to stabilize individuals with emergency medical conditions.

Amendments to the regulations taking effect in 2003 no longer require all specialties and subspecialties represented by the active medical staff to be included on the daily on-call list for the ED. Now the hospitals have greater discretion in arranging on-call coverage. However, the hospital must have written policies and procedures to be followed when a particular specialty is not available. The governing body of a hospital without an ED must still provide policies and procedures for all the same things required by EMTALA for those that do have EDs. According to ―The EMTALA Answer Book,‖ policies that are hospital board approved should clearly state: 1. A reasonable response time 2. Action called for when the on-call physician has not responded in the allocated time 3. Action called for if a particular specialty is not available 4. Action called for when the on-call physician cannot respond because of situations beyond his/her control.

When a properly notified on-call physician fails to appear to assist in treatment of a patient in an emergency medical condition, and the emergency room physician believes the benefits of the patient‘s transfer to another facility outweigh the risks of transfer given the on-call

The MagMutual Risk Management Handbook

122

physician‘s absence, the emergency room physician has a duty under EMTALA to report the identity of the on-call physician to the hospital that receives the transferred patient, and that hospital has a duty to report the on-call physician to the Federal government. The obligation of the on-call physician to respond to a request for assistance in an emergency situation exists without regard for whether the patient is ―his‖ or ―her‖ patient. It makes no difference under EMTALA whether the on-call physician has previously seen the patient.

Published changes were made to the 1986 EMTALA regulations on September 9, 2003, taking effect on November 10, 2003. Some of the important changes that may affect on-call physicians are as follows: Under the new regulations, hospitals have greater discretion in arranging for on-call coverage and the hospital no longer is required to have 24-hour on-call coverage for each specialty. However, the hospital must have written policies and procedures to be followed when a particular specialty is not available.

The new regulations permit physicians to have simultaneous oncall duties at two or more hospitals.

The new regulations permit physicians to schedule elective surgery or other procedures while on-call.

The new regulations include no changes to the civil monetary penalties for violations by a non-compliant hospital and/or physician.

Often, physicians on the medical staff are not aware of the potential liabilities they face if they violate EMTALA. Physicians may still view oncall duty as a voluntary favor to the hospital and as a minor obligation of being a member of the medical staff. With EMTALA, any physician on call must respond to a request for help with a patient‘s emergency medical condition within the time allotted by the medical staff bylaws and/or rules and regulations, regardless of the patient‘s ability to pay for the services. If an emergency room physician determines a patient requires the services of an on-call physician fails or refuses to appear within a reasonable period of time after notification, the on-call physician or the hospital or both may be subject to is subject to civil money penalties by the U.S. Department of Health & Human Services. The noncompliant on-call physician may also be liable to a patient in tort for any injury the patient sustains because of the physician‘s failure to appear as requested.

The MagMutual Risk Management Handbook

123

According to OIG/HCFA, the consequences to physicians who are noncompliant are similar to those of the hospital but are specific to the physician.

An on-call physician who is found guilty of EMTALA violations is potentially liable for a $50,000 civil penalty as well as the loss of Medicare provider participation.

Some state medical boards may impose civil penalties against physicians and take licensure actions.

The on-call physician may be included in a civil lawsuit (i.e., medical malpractice) against the hospital if the patient suffers injury as a result of the violation.

All physicians should become aware of their responsibilities with regard to EMTALA to reduce the potential for liability.

Reference: The EMTALA Answer Book, 2010 Edition, Mark M. Moy, Publisher Wolters Kluwer

SECTION 7 – QUALITY AND PERFORMANCE IMPROVEMENT/RISK MANAGEMENT PLAN 7.1

MEDICAL OFFICE QUALITY AND PERFORMANCE IMPROVEMENT/RISK MANAGEMENT PLAN Purpose/Scope The objective of the Quality and Performance Improvement/Risk Management Plan (―Q&PI/RM Plan‖) is to provide a method to review and continuously improve the quality of care/service provided by the physician‘s medical office and to provide a mechanism for identification and control of risk exposures, improving patient safety, improving the quality of care, and ultimately reducing the risk of liability. The Q&PI/RM processes are carried out and documented within established medical office guidelines and applicable state laws. The Q&PI/RM process will focus on a planned and systematic identification of the medical practice‘s needs/problems to identify opportunities for improvement before problems occur and resolution of known or suspected problems that have an impact on patient care or other customer needs and the medical office‘s liability.

This will be accomplished through ongoing monitoring and evaluation of key process indicators utilizing nationally recognized standards, in-

The MagMutual Risk Management Handbook

124

ternal and external databases, benchmarking and risk management outcomes.

The Q&PI/RM Plan serves as the tool for management to effectively implement Q&PI/RM activities within the medical office‘s services.

This plan focuses on all areas throughout the medical office including direct patient care, management and patient care/services. The objectives of this program are to enhance the ongoing performance and quality of all medical office operations and functions and to reduce risk.

Responsibility and Authority The owners of the medical practice have the overall responsibility for assuring the provision of quality services and preventing losses. The managing body requires the medical staff and office staff to implement and report on the activities and mechanisms for monitoring and evaluating the quality of patient care, for identifying opportunities to improve patient care and for identifying and resolving problems. The goal is to provide quality patient care nationally recognized standards of care to physicians in a safe and professional environment.

An individual within the medical office management staff will be identified to collect and report data to the physician(s) for their review and formulation of action plans for continuous improvement when needed, based on the results of data collected.

Indicators Indicators are used to identify potential problem-prone areas. The indicators are selected based on important aspects of care/service activities such as patient satisfaction, medical chart review, documentation compliance with OSHA/CLIA standards, patient flow, nationally recognized disease management protocols and risk control aspects such as malpractice claims and office safety practices. The indicators are measurable and based on nationally recognized criteria and risk assessment outcomes. Indicators are reviewed and adjusted from time to time as needed. See suggested possible indicators in Section 8.6.

Data Collection Indicator data is collected on the Indicator Data Collection Form (Section 7.3). Indicator outcomes will be reported to the medical staff on the Indicator Outcome Report Form (Section 7.4).

When an action plan is identified, it will be documented on the Improvement Action Plan Form (Section 7.5). Resources for indicator data will include, but not be limited to, patient surveys, information from

The MagMutual Risk Management Handbook

125

managed care organizations/payers, medical records reviews, safety reports and risk management outcomes.

When the data has been collected, it is important to use the suitable technique/tool to analyze and present the data enabling decisions to be based on fact. Frequently used techniques/tools include: Bar Chart: A graphical depiction of the number of occurrences and frequencies for a set of categories.

Pareto Chart: A special form of a vertical bar graph which is used to display the relative importance of all the problems. It is useful in identifying the problem causes which have the greatest impact and need to be worked on.

Control Chart: Displays data over time distinguishing between common and special variation in a process. Control charts are useful in deciding when and when not to make process adjustments.

Plan for Improvement Opportunities for improvement will be identified and reported on the Improvement Action Plan Form. The effects of that action are then monitored through further indicator data collection. This follow-up is essential for quality improvement.

A number of effective measures may be taken to foster improvement or to correct deficiencies in the quality of care provided. The following are some specific examples: Making structural changes in the organization or patient care.

Targeting continuing education programs to address identified problems or concerns.

Amending policies, procedures, processes and forms.

Increasing or realigning staffing levels or patterns.

Providing new equipment or facilities.

Making changes in patient education programs.

The MagMutual Risk Management Handbook

126

Using management intervention in the form of positive/negative feedback, formal counseling. etc.

Accountability It is every staff member‘s responsibility to ensure current knowledge of Q&PI/RM activities. All new employees will be briefed on the Q&PI/RM Plan during the newcomer‘s orientation. All practitioners will be aware of current indicators being monitored and their performance. The Q&PI/RM Plan will be reviewed annually and indicators changed and implemented as necessary, but with at least two indicators being reviewed annually.

Disposition of Documentation All Q&PI/RM Plan documentation is retained on file in a secured office and maintained for three years. All data collected by the Q&PI/RM Plan is regarded as confidential and will be held in strict confidence.

Q&PI/RM Plan documents will have the following confidentiality statement prominently displayed on the first page: This Quality and Performance Improvement Risk Management Document is prepared for use in the facility‘s quality assurance process and contains Confidential Information. It shall not be subject to discovery or introduction into evidence in any civil action.

Suggested wording: This Quality Improvement Document is prepared for peer review purposes for use in the facility‘s quality improvement process and contains Confidential Information. Quality and Performance Improvement/Risk Management material may not be released without the permission of the medical practice owner. Intentional or unintentional release of confidential information, verbal or written, to an unauthorized person or agency will result in disciplinary action and may be considered just cause for immediate dismissal of an employee.

7.2

PATIENT / CUSTOMER SATISFACTION / ADVOCACY PROGRAM Policy The purpose of the Patient/Customer Satisfaction program is to promote patient and customer satisfaction by providing an effective advocacy program for handling complaints.

The customer is considered to be any consumer (e.g., patients, family members, referring physicians, etc.). All patients and consumers will

The MagMutual Risk Management Handbook

127

have a process which allows them to express any questions, concerns or grievances about the practice and receive a timely response.

Procedure The medical office‘s Practice Administrator or designee serves as the designated Patient/Customer Representative.

Any patient or customer who has a question, complaint or need which cannot be met by the staff member handling that patient or customer will be referred to the designated Patient/Customer Representative.

The Patient/Customer Representative uses a Patient Advocate Report Form (Section 8.8) to record and track the status and outcome of each complaint or situation.

Questions or concerns related to the quality of the medical care given by any healthcare provider will be referred to the physician practice‘s Chief Medical Officer.

Concerns related to the billing or claims will be referred to the supervisor of the Billing Department.

For those complaints which require referral, the Patient/Customer Representative will keep a copy of the Patient Advocate Form, and a copy will be sent to the staff member selected to handle the situation.

A written response should be provided to the Patient/Customer Representative within 48 hours.

The Chief Medical Officer and/or the Quality/Risk Manager should be used as resources for any complaints which suggest possible medical or legal implications or when the Patient/Customer Representative needs assistance with evaluating the problem.

Each complaint or situation is tracked by the Patient/Customer Representative to ensure resolution and/or patient/customer satisfaction.

The reports should be reviewed on a monthly basis to track the status of the referred complaints and to monitor them for developing trends.

Staff should make every effort to respond to patients and customers within 4-8 hours of receiving the referral. If appropriate, a follow-up letter should be sent within one week.

The Patient/Customer Representative will prepare a monthly report (Section 7.9) for the Quality/Risk Manager which summarizes the nature and status of all complaints and needs.

The Quality/Risk Manager will forward this information to the clinic‘s Quality/Risk Management Committee.

The MagMutual Risk Management Handbook

128

The Quality and Performance Improvement/Risk Management Committee will use the reported data to identify customer needs and problems which present opportunities to improve the quality of care and services rendered by the medical practice.

This will be accomplished through ongoing monitoring and evaluation of key processes. The findings will be shared with the staff to encourage their continued participation in both the Patient/Customer Satisfaction and the Quality and Performance Improvement/Risk Management Programs.

Questionnaire The purpose of the Questionnaire is to identify and establish guidelines to obtain patient and family input into our systems and processes.

Outcomes will be used through the quality and performance improvement process to promote quality of care.

A designated Patient/Customer Satisfaction Questionnaire (Section 7.9) will be used to monitor the quality and efficacy of patient services.

The Questionnaire will be available throughout the practice for immediate patient/customer feedback.

It is also recommended that the practice conduct a survey for one week four times a year. Provide a survey and self-addressed envelope to each patient during the survey period.

7.3

INDICATOR DATA COLLECTION FORM

Indicators Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec

Result will be reviewed at least monthly and reported quarterly in a formal report to the management staff using quality forms. Opportunities for improvement will be investigated and acted upon as needed.

The MagMutual Risk Management Handbook

129

7.4

INDICATOR OUTCOME REPORT FORM Indicator

7.5 Indicator

1st Qtr

2nd Qtr

3rd Qtr

4th Qtr

Yearly Average

IMPROVEMENT ACTION PLAN FORM Findings & Conclusions

The MagMutual Risk Management Handbook

Action

Follow-up Plans

130

7.6

INDICATORS Indicators are established to identify opportunities for improvement in services or care provided. Indicators can be disease specific or clinical operation processes. At least two indicators should be monitored per year. Indicators are measurable and based on clinical criteria or acceptable standards of practice. Indicators should be reviewed and adjusted as required with the following objective maintained.

Ongoing indicators should be monitored to define trends and patterns of practice.

The results of the indicators‘ effects are reported on the Indicator Outcome Report Form at least quarterly.

The management staff should address outcomes that require immediate action.

Following are established clinical indicators or system/risk management indicators which may be used in the Q&PI/RM program.

Indicator Use Gynecology Family Practice Internal Medicine Indicator Women of childbearing age should have an annual Pap smear documented.

Number of women enrolled in your care of childbearing age.

Indicator Use Gynecology Family Practice Internal Medicine Indicator Number of women 50 years or older enrolled in your practice.

Women 40-50 years old should have a mammogram at least every two years.

Number of women 40-50 years old enrolled in your practice.

Women 50 years or older should have an annual mammogram.

The MagMutual Risk Management Handbook

131

Indicator Use Obstetrics Family Practice Indicator Women who have delivered should have a post-delivery visit in your office.

Deliveries you have done.

Indicator Use Mental Health Indicator Patients who followed up with the physician for a clinic visit after hospitalization.

Number of patients hospitalized in a given period.

Indicator Use Cardio/Thoracic Family Practice Internal Medicine Indicator Number of patients with cholesterol management documented after an acute cardiovascular event.

Number of patients experiencing a cardiovascular event in a given time period.

The MagMutual Risk Management Handbook

132

Indicator Use OB/GYN Family Practice Cardio/Thoracic Internal Medicine Indicator Number of patients who say they smoke.

Number of times patient education to quit smoking is documented.

Indicator Use Family Practice Internal Medicine Indicator Annual Hemoglobin AIC testing done.

Number of diabetics under treatment in your practice.

Indicator Use Family Practice Internal Medicine Cardio/Thoracic Indicator Patients over 65 years of age should be offered the pneumococcal vaccine.

Number of patients over 65 years of age in the practice.

The MagMutual Risk Management Handbook

133

7.7

PATIENT ADVOCATE REPORT Patient Advocate Report

Date: Patient/Person Involved: Location: Address:

Phone:

(H) (W)

Source:

Patient Visit

Call In

Date Patient Seen:

Mail Chart No:

Please check all that apply by marking “X” X

SUBJECT Physician/Provider Clinical Staff Clerical Staff Referral Network Access – Office Hours Access – Appointments Access – Follow-ups Access – Phone Response Waiting Time to Get Appointment Waiting Time in Office Billing Claims Miscellaneous

SPECIFICS

Response: Resolution: Yes

No

Date:

Patient Satisfied? Yes

Date:

Patient Representative

No

Forwarded to: Forwarded to:

Reprinted with permission from the Medical Group Management Association 104 Inverness Terrace East, Englewood, Colorado 80112-5306; 303-799-1111. Copyright 1999

The MagMutual Risk Management Handbook

134

7.8

PATIENT ADVOCATE MONTHLY REPORT Patient Advocate Monthly Report

Date: Practice Site: Patient Advocate:

SUBJECT

J

F

M A M J

J

A S

O N D TOTAL

Physician/Provider Clinical Staff Clerical Staff Referral Network Access – Office Hours Access – Appointments Access – Follow-ups Access – Phone Response Waiting Time to Get Appointment Billing Claims Miscellaneous OVERALL

Comments:

cc: Director of Quality and Risk Management Reprinted with permission from the Medical Group Management Association 104 Inverness Terrace East, Englewood, Colorado 80112-5306; 303-799-1111. Copyright 1999

The MagMutual Risk Management Handbook

135

7.9

PATIENT /CUSTOMER QUESTIONNAIRE Patient/Customer Questionnaire Please take a few minutes to complete this questionnaire about our services.

We appreciate your input and value you as a customer.

1.

Please tell us who is completing this questionnaire: Patient

Family Member

Other

2.

Why were you visiting our practice today (chief complaint)?

3.

Were you greeted politely and helped promptly by our receptionist?

Yes

No

If no, please explain:

4.

Were there any problems processing your insurance information?

Yes

No

If no, please explain:

5.

Approximately how long did you have to wait to see your doctor?

Less than 15 minutes 15 – 30 minutes 30 – 45 minutes 45 – 60 minutes Over one hour

6.

Were you satisfied with the care provided by your doctor?

Yes

No

If no, please explain:

7.

Were you satisfied with the overall care provided by our staff?

Yes

No

If no, please explain:

The MagMutual Risk Management Handbook

136

Patient / Customer Questionnaire (Continued) 8. Were you satisfied with the appearance of the facility?

Yes

No

If no, please explain:

9.

10.

Please rate our practice: a.

Services available

Excellent

b.

Adequate space

c.

Professional appearance

d.

Professional attitude

e.

Respectful and caring staff

f.

Safety of environment

g.

Education information obtained

Satisfactory

Poor

Will you return to our practice for future care if needed?

Yes

No

If no, please explain:

Comments are appreciated:

All questionnaires are absolutely confidential, but if you would like to receive information or followup on any comments: Yes No (Please include your name & address) Name: Address: Phone number where you can be contacted: THANK YOU FOR THE TIME YOU TOOK TO ASSIST US IN IMPROVING OUR SERVICES!

The MagMutual Risk Management Handbook

137

7.10

OTHER RESOURCES ―Principles for Performance in Healthcare‖ A Consensus Statement from the American Medical Accreditation Program and the Joint Commission on Accreditation of Healthcare Organization and the National Committee for Quality Assurance, Attachment B. NCQA, ―HEDIS and Quality Measurement, http://www.ncqa.org.

NCQA, ―HEDIS List of Measures‖, http://www.ncqa.org. http://www.magmutual.com/risk/RMQuality_PatSaf.html American Board of Medical Specialties, Improving Performance in Practice (www.ipipprogram.org) American Board of Medical Specialties Quality Improvement in Practice www.abms.org/Product_and _Publications/Performance Improvement/PSIP American Board of Internal Medicine www.abim.org www.aafp.org/online/en/home/practicemgt/quality/qitools www.acponline.org/quality Crossing the Quality Chasm: A New Health System for the 21st Century American Academy of Family Physicians, www.aafp.org includes Patient Safety in the Primary Care Office and QI tools and resources Institute for Healthcare Improvement IHI.org

The MagMutual Risk Management Handbook

138