Medical Malpractice Discussion with Experts: Hayes V. Whiteside, M.D., Chief Medical Officer and Senior Vice President of Risk Management for ProAssurance

Hayes V. Whiteside, M.D., is Chief Medical Officer and Senior Vice President of Risk Management for ProAssurance. Prior to joining ProAssurance in 2004, he practiced Urology for 18 years in Tuscaloosa, Alabama. He received his undergraduate degree from Louisiana State University and his medical degree from Louisiana State University School of Medicine in New Orleans. Dr. Whiteside completed a general surgery internship and residency at LSU in New Orleans and a urology residency at LSU as well. He was Associate Professor of Surgery at The University of Alabama College of Community Health Sciences Division of Surgery in Tuscaloosa. He also served as Chairman of the Tuscaloosa County Board of Health from 2002-2006. He remains active in numerous medical societies and professional organizations.

For more information on Dr. Whiteside and ProAssurance, visit www.proassurance.com.

Q. Nebraska passed “I’m Sorry” legislation a few years ago. The intent 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?

Dr. Whiteside: One of the most challenging situations a physician faces is delivering bad news to patients and families.  To facilitate the process of delivering such news, many states, like Nebraska, have enacted “apology laws” to prevent expressions of sympathy from being introduced as evidence of wrongdoing in professional liability lawsuits. At the outset, physicians who face such a situation should contact their professional liability carrier and the facility’s risk manager to assist in disclosure and communication with the patient and family. If at all possible, physicians should have these conversations in-person, so that the patient and family can see the physician’s concern, ask questions, and explore options. When disclosing unexpected outcomes and delivering expressions of sympathy, whether in-person or in a letter, it is important to acknowledge that the event occurred.  Depending on the situation, an apology that the event happened may be desirable or appropriate, but physicians should refrain from accepting blame for the event. The conversation, including the names and relationships of those present, should be documented in the patient’s medical record.  Physicians know it is impossible to prepare for every difficult situation that may arise; however, general preparation for disclosure of adverse events is good risk management, just like a fire drill.  Furthermore, development and maintenance of an open and strong patient relationship may prevent deterioration of the relationship should an unexpected outcome occur.  

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?

Dr. Whiteside: As the face of medicine changes (practice trends, technological advancements, etc.), static written procedures are not always adequate.  Naturally, easy-to-understand-and-implement processes that are well-known to the office staff are more likely to be followed.  An important process is tracking and following up on diagnostic tests/imaging studies, lab results, and referrals. Follow-up with patients who have missed or cancelled appointments is a key process for physician practices.  Another important process is telephone triage, recognition of urgent/emergent complaints and provision of physician-approved responses to common questions or problems by the office staff.  As important as the actual processes is the staff’s knowledge and understanding of their important role in patient safety and risk management.

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?

Dr. Whiteside: Without a doubt. Physicians and other medical professionals can tell you that patients who perceive that they have a good relationship with their physicians are less likely to sue, even in the face of an adverse outcome.  Effective risk management begins as soon as a professional relationship is established with a patient, and effective communication is the cornerstone of a successful physician/patient relationship, with understanding, compliance, and satisfaction ultimately depending on both verbal and written communication. Good communication improves actual care and the patient’s perception of the care that he or she receives: two key ingredients to deterring lawsuits. Patient education is important, as well, because patients who don’t understand what medicine can and cannot do for them may mistake a known complication, adverse event, or unanticipated outcome as “bad medicine.” Educating patients doesn’t have to be technical or lengthy, but efforts should be as thorough as possible. It’s a good idea to keep a patient’s fears in mind – we recommend physicians check a patient’s understanding by asking him or her to repeat any key points, as well as asking the patient to relay any questions or concerns. We also recommend encouraging the patient to take an active role in his or her course of treatment. Patient non-compliance, which often leads to adverse events, is frequently associated with a patient’s failure to understand his or her condition, the rationale for treatment, and the important role he or she play in achieving positive outcomes.

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

Dr. Whiteside:  The primary function of a medical record is to provide a complete and accurate description of a patient’s medical history, medical conditions, diagnoses, care and treatment, and response to such care and treatment. Proper documentation within the medical record can support a physician’s defense and illustrate his or her commitment to the patient’s care.  Whether to a jury, third party payor, or another physician, proper documentation gives physicians credit for the good care they are providing.  We recommend documentation be legible, timely, chronological, accurate, thorough, and objective. Documentation should include tests ordered, past medical histories, allergies, and medication lists. Discussions with patients, such as informed consent discussions or discussions regarding a patient’s noncompliance, should be documented and include the names and relationships of anyone present. Physicians or staff should document if printed educational materials are provided or if the patient watches an online program or video.  In order not to taint the documentation of the good care being provided, physicians should not alter the medical record.  Corrections and addenda should be transparent, and a physician’s professional liability carrier may be of assistance before documentation mistakes are made.  Again, physicians should receive credit for the good care they are providing, and proper documentation is the means to that end. 

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?

Dr. Whiteside: The benefits of preventive practices include quality patient care, promotion of patient safety, open and strong patient relationships, compliance with laws and regulations, and protection from liability. A preventive checklist to achieve those benefits might incorporate the following:

  1. Physician-approved telephone triage protocols for both office and after-hours calls that address what complaints require immediate attention, frequently asked questions and common problems, and parameters to determine if an office visit or other action is necessary.
  2. Documentation of all patient telephone calls, during and after regular office hours, which includes the date/time of the call, subjective information provided by the patient/family, advice or instructions given, and prescriptions phoned in to a pharmacy (with medication name, dosage, frequency, amount, any refills, and the pharmacy utilized).
  3. A system to track missed or cancelled appointments, referrals and consultations, and test and lab results, including documentation of all steps and efforts to reschedule patients or obtain information.
  4. Documentation of informed consent discussions, which includes the physician’s discussion regarding the risks, benefits, and consequences of non-treatment; the patient’s agreement with the plan; and any state law documentation requirements.

© 2009 Parsonage Vandenack Williams LLC

  For more information, contact info@pvwlaw.com

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MEDICAL MALPRACTICE DISCUSSION WITH EXPERTS: WILLIAM LAMSON, MEDICAL MALPRACTICE DEFENSE ATTORNEY

Bill Lamson is a partner of Lamson, Dugan and Murray and Chairman of the Firm’s Litigation Department.  Bill is well recognized and highly sought in the area of medical malpractice defense. 

Mr. Lamson is a 1969 graduate of the University of Nebraska. He was inducted into the American College of Trial Lawyers in 1985 and the International Society of Barristers 1996. He is also a member of the Nebraska Defense Lawyers Association, and a member of the Defense Research Institute.

For more information on Bill Lamson and the well respected law firm of Lamson, Dugan and Murray, see www.ldmlaw.com

Below are Mr. Lamson’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. Lamson’s response:  States that have passed “I’m sorry” statutes have differed in the scope of protection provided.  The Nebraska statute, like most others, is narrowly drafted to protect only statements of sympathy or compassion, but not statements of fault in relation to an unanticipated outcome of medical care. 

Expressions of apology and sympathy are important in building relationships of trust with patients and families.  On the other hand, expressions of fault or other explanations regarding an unanticipated outcome often require speculation on the part of the physician and will be admissible as evidence should the physician be sued and the case proceed to trial.  Physicians should therefore provide apologies with caution, understanding the limitations of the protection afforded by the “I’m sorry” statute.  

The discussion of legal issues related to this legislation is not to be confused with requirements set forth in physicians’ codes of ethics, such as the AMA Code of Medical Ethics, which should always be observed.     

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. Lamson’s response:

Responding to patient phone calls and documentation thereof

Follow-up on outside lab/test results

Updating patient’s recent history, especially re: other physicians seen, medications prescribed by other physicians

Documentation of Patient Education/Informed Consent

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. Lamson’s response:

Yes.

Patients who sue are often angry about perceived attitudes on the part of the physician.  They describe a lack of caring, or indifference, and lack of listening to the concerns of the patient or family.  This is often a misperception of which the physician is unaware.  Taking steps to avoid this will benefit the patient and lessen the risk of litigation for the physician. 

 Trust is important in a physician/patient relationship.  Trust can be established by communicating with the patient on a level that he/she understands and allowing the patient to be involved to a reasonable extent in medical decision-making.  It is also established by speaking frankly with the patient while remaining nonjudgmental regarding personal medical issues.  Taking time to listen to patient concerns and to answer questions goes far in demonstrating an attitude of caring.  All of these actions are likely to assist in the establishment of a successful physician/patient relationship.        

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

Mr. Lamson’s response:

Documentation entries should be dated and timed, legible, and factual.  They should provide enough information to tell a story that allows the physician or other healthcare provider to understand what has been going on with the patient.  Interdisciplinary communications should be documented, as should communications with consulting physicians and with the patient or family.  Patient education/informed consent should always be documented in the medical record, the specificity of which depends on the circumstances.  Errors should be corrected by lining through; never obliterate or attempt to change a medical record after-the-fact.  With electronic charting, avoid the temptation to simply “choose from the menu.”  Individualize by entering annotations as necessary.   

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. Lamson’s response:

Perform an appropriate history/physical examination before prescribing any medication or treatment for a patient.

Formulate a (differential) diagnosis when a patient is seen for a medical complaint.

Follow-up after ordering any medication or treatment, or additional testing.

Communicate with the patient/family regarding diagnosis, treatment, and recommendations; allow time for patient questions and input; ensure patient understanding.

Document all of the above.

© 2009 Parsonage Vandenack Williams LLC

  For more information, contact info@pvwlaw.com

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

MEDICAL MALPRACTICE DISCUSSION WITH EXPERTS: WILLIAM LAMSON, MEDICAL MALPRACTICE DEFENSE ATTORNEY

Bill Lamson is a partner of Lamson, Dugan and Murray and Chairman of the Firm’s Litigation Department.  Bill is well recognized and highly sought in the area of medical malpractice defense. 

Mr. Lamson is a 1969 graduate of the University of Nebraska. He was inducted into the American College of Trial Lawyers in 1985 and the International Society of Barristers 1996. He is also a member of the Nebraska Defense Lawyers Association, and a member of the Defense Research Institute.

For more information on Bill Lamson and the well respected law firm of Lamson, Dugan and Murray, see www.ldmlaw.com

 Below are Mr. Lamson’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. Lamson’s response:  States that have passed “I’m sorry” statutes have differed in the scope of protection provided.  The Nebraska statute, like most others, is narrowly drafted to protect only statements of sympathy or compassion, but not statements of fault in relation to an unanticipated outcome of medical care. 

Expressions of apology and sympathy are important in building relationships of trust with patients and families.  On the other hand, expressions of fault or other explanations regarding an unanticipated outcome often require speculation on the part of the physician and will be admissible as evidence should the physician be sued and the case proceed to trial.  Physicians should therefore provide apologies with caution, understanding the limitations of the protection afforded by the “I’m sorry” statute.  

 The discussion of legal issues related to this legislation is not to be confused with requirements set forth in physicians’ codes of ethics, such as the AMA Code of Medical Ethics, which should always be observed.     

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. Lamson’s response:

Responding to patient phone calls and documentation thereof

 Follow-up on outside lab/test results

 Updating patient’s recent history, especially re: other physicians seen, medications prescribed by other physicians

 Documentation of Patient Education/Informed Consent

 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. Lamson’s response:

Yes.

 Patients who sue are often angry about perceived attitudes on the part of the physician.  They describe a lack of caring, or indifference, and lack of listening to the concerns of the patient or family.  This is often a misperception of which the physician is unaware.  Taking steps to avoid this will benefit the patient and lessen the risk of litigation for the physician. 

  Trust is important in a physician/patient relationship.  Trust can be established by communicating with the patient on a level that he/she understands and allowing the patient to be involved to a reasonable extent in medical decision-making.  It is also established by speaking frankly with the patient while remaining nonjudgmental regarding personal medical issues.  Taking time to listen to patient concerns and to answer questions goes far in demonstrating an attitude of caring.  All of these actions are likely to assist in the establishment of a successful physician/patient relationship.        

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

Mr. Lamson’s response:

Documentation entries should be dated and timed, legible, and factual.  They should provide enough information to tell a story that allows the physician or other healthcare provider to understand what has been going on with the patient.  Interdisciplinary communications should be documented, as should communications with consulting physicians and with the patient or family.  Patient education/informed consent should always be documented in the medical record, the specificity of which depends on the circumstances.  Errors should be corrected by lining through; never obliterate or attempt to change a medical record after-the-fact.  With electronic charting, avoid the temptation to simply “choose from the menu.”  Individualize by entering annotations as necessary.   

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. Lamson’s response:

Perform an appropriate history/physical examination before prescribing any medication or treatment for a patient.

 Formulate a (differential) diagnosis when a patient is seen for a medical complaint.

 Follow-up after ordering any medication or treatment, or additional testing.

 Communicate with the patient/family regarding diagnosis, treatment, and recommendations; allow time for patient questions and input; ensure patient understanding.

 Document all of the above.

© 2009 Parsonage Vandenack Williams LLC

  For more information, contact info@pvwlaw.com

MEDICAL MALPRACTICE EXPERT DISCUSSIONS

PVWLaw has asked a variety of medical malpractice experts to respond to a series of questions on medical malpractice.  The questions focus on what physicians can do proactively to prevent medical malpractice lawsuits as well as on some aspects of tort reform.

© 2009 Parsonage Vandenack Williams LLC

  For more information, contact info@pvwlaw.com