MEDICAL MALPRACTICE DISCUSSION WITH EXPERTS: JOHN MARSHALL, HEALTHCARE RISK SERVICES PRINCIPAL, AND TIM LANGDON, HEALTHCARE RISK SERVICES PROJECT ANALYST

John Marshall is currently head of the Healthcare Risk Services practice area for SilverStone Group.  Throughout his career, John has developed an expertise in medical malpractice insurance and risk management for the healthcare industry.  John is a regular speaker and writer on risk management. The Silverstone health care team works to develop strategies to reduce the total cost of risk for clients in the healthcare industry.

Tim Langdon has an undergraduate background in Health Administration & Policy and a post graduate degree in law. Tim’s role is to develop unique risk management strategies.  Tim is a frequent writer on speaker on health care risk management strategies.   

For more information on John Marshall and Tim Langdon, including more detailed bios, and the SilverStone Group, visit http://www.silverstonegroup.com/.

Below are Mr. Marshall’s and Mr. Langdon’s responses to our series of questions on medical malpractice:

Q.  Nebraska passed “I’m sorry” legislation a few years ago.  The intention of the legislation is to provide physicians the opportunity to apologize to a patient for a negative result without having such apology used against the physician in a medical malpractice lawsuit.  Do you think that physicians should take advantage of such legislation?  If so, in what instances? What is the danger of writing such a letter?

Mr. Marshall’s and Mr. Langdon’s Responses:

“I’m Sorry” legislation has gained much attention for promoting physician apologies to patients while seeking to shield them from liability, but there are some unintended consequences of doing so that are often overlooked.  Every physician, under the terms of their professional liability insurance, has a duty not to compromise the ability of the insurer to defend against a claim.  Therefore, it is important for a physician or health care facility to involve their insurance company as soon as possible when there is a potential claim.  This will allow the physician to work with the insurer to craft an appropriate “I’m Sorry” response.  Doing so will lessen the risk that an otherwise protected expression of sympathy or compassion will be construed as compromising the insurer’s position, thereby placing the physician’s malpractice insurance at risk.

Regarding “I’m Sorry” legislation in general, there is a scarcity of research on the ability of apologies to reduce litigation.  Insurance carriers have had success rates in defending and closing claims with no payment in excess of 90% and it will take a substantial amount of evidence to move the industry away from a “defend and deny” strategy.

Last, there remains an open and significant question regarding the programs in place with some insurance carriers that rely on apologies and small payments to claimants to avoid full blown lawsuits.  These “Early Resolution” claims programs may result in more claims reported to the National Practitioner Data Bank than would occur under a standard “defend and deny” strategy.  This includes claims without merit that would otherwise be defeated, but instead (and wrongly) are settled for a small amount and reflect negatively on a physician’s reputation.

Q. If you were to review the office procedures for a medical practice, what three or four procedures would you want to see (1) in writing; and (2) actively followed?

Mr. Marshall’s and Mr. Langdon’s Responses:

Policies and procedures for safeguarding PHI and other valuable patient data (e.g. financial information) to prevent identity theft.

The follow-up process for ALL test results.

Guidelines for staff on friendly and appropriate interactions with patients.  Happy patients will be life-long patients and are the ones least likely to sue you.

 Q.  It is often said that the physician/patient relationship is an important aspect of a successful treatment relationship.  Do you agree with that statement? If yes, what would be important in the physician/patient relationship?

Mr. Marshall’s and Mr. Langdon’s Responses:

Absolutely.  Mutual trust and respect are crucial to a successful physician/patient relationship because they form a foundation for open communication.  Both parties must be able to share information freely, discuss concerns, and ask questions to ensure an optimal treatment outcome.  Both parties to the relationship must not the let the gap in knowledge between patient and physician dictate how they interact.  This simply means patients and physicians must look at each as equals working toward a common goal of better health.  Additionally, physicians should challenge their patients’ understanding of treatment options and instructions.  Physicians should also adjust the content and style of their communications to meet the unique needs of each patient.

Q.  What factors are particularly important in terms of quality documentation?

Mr. Marshall’s and Mr. Langdon’s Responses:

Truthfulness, accuracy, timeliness, and legibility are vitally important to quality documentation.  Most importantly though is that that there is sufficient quality documentation in the first place.  A growing focus of Medicare and Medicaid fraud investigations, particularly audits by Recovery Audit Contractors, are services rendered without proper documentation.  Without the right documentation, physicians will have to forfeit payment received for these services and further, put themselves at risk for additional fines, penalties, and in extreme cases, exclusion. 

Q. If you were to create a preventive law checklist for medical practices, what would be three or four of the most important things on that checklist?

Mr. Marshall’s and Mr. Langdon’s Responses:

First, recognize where your best opportunities to transfer risk are.  Some risks are insurable, but the majority of risks can only be addressed through proactive measures.  Allocate your risk management dollars as best suits your needs and risk tolerance.  Second, ensure that a comprehensive set of policies and procedures are in place, but more importantly, that the staff actually follows them.  Last, recognize where you have had problems in the past and proactively address these areas first.  This may seem simple, but it’s far easier to ignore a mistake and its resolution then it is to take steps to prevent the mistake from happening again.

 

© 2009 Parsonage Vandenack Williams LLC

  For more information, contact info@pvwlaw.com

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