PHYSICIANS: USE CARE WHEN AMENDING MEDICAL RECORDS

It is an important practice for physicians to review medical records to check for accuracy and completeness.  Taking the time to amend medical records is a common practice.

Obviously, the best practice is to complete records correctly the first time.  However, physicians can make additions or corrections at a later point in time.  The key is to make the amendments in a legitimate manner.  Any amendments should be timely and not an apparent change.

Once a lawsuit has been filed or an attorney has requested records, it is too late to amend a patient’s medical records.   At this point, the plaintiff’s attorney most likely already has a copy of a physician’s records in their original form.  The jury will be shown both the original record and the revised record.  Anything a physician writes now could be viewed as self-serving or characterized as a cover-up.

Adding to a Medical Record

What should a physician do upon discovery that something has been left out of a medical record?  The physician should add to the record to show he or she reviewed the record and took care to add any missing information.

Correcting a Medical Record

What should a physician do upon discovery of an error in notes?  The physician should write a note to show that he or she is conscientious and concerned.  It is important to avoid using correction fluid to cover the original note, and to avoid erasing or obliterating any documentation in the record.  This would be characterized in court as an attempt to hide the facts.

Impact of Proper Amendment

It is very important for a physician to properly amend medical records correctly in the manner described above.  Any alteration will be detected by experts on handwriting, paper, ink and pen.  By making proper alterations, a physician will greatly reduce his or her liability in regard to insurance coverage issues, criminal charges, licensure problems, and malpractice.

Source, Lee J. Johnson, JD, Medical Economics, January 22, 2010.

 

  For more information, contact info@pvwlaw.com

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

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

AMA ANNOUNCES ENHANCED ELECTRONIC PRESCRIBING LEARNING CENTER

Earlier this year, the American Medical Association (“AMA”) established a new online learning center to provide physicians with the information and tools that they need to make well-informed decisions about electronic prescribing (“ePrescribing”).  Now, the AMA has introduced additional enhanced tools for ePrescribing. 

The learning center offers many tools and resources to help physicians, including calculators to estimate time savings and eligibility for incentive payments as well as planning devices to help assess practice readiness for and ease implementation of new technologies.  Examples of some of the new tools include:

  • A system finder tool that picks three systems for a user based on the user’s response to a brief survey
  • Side-by-side comparisons of up to three sPrescribing vendors at one time
  • The ability to view vendor feedback and ratings from other users, and the ability to provide one’s own feedback
  • Automated capability to contact a vendor when a decision is reached

The site and its resources can be accessed by physicians and others at http://www.ama-assn.org/ama/pub/eprescribing/home.shtml.

© 2009 Parsonage Vandenack Williams LLC

  For more information, contact info@pvwlaw.com

Practice Management Tips for Physicians

1.  Have Contracts with Third Parties Reviewed and Have a Policy about who is authorized to sign contracts.  Permit only managing physicians to sign contracts… of any kind. This is often overlooked on simple things like a new photocopier.  The receptionist signs a contract without realizing the ramifications.  No one reviews it. No one realizes the term of the agreement.   Some agreements require the practice to notify the vendor of termination to avoid an auto renewal.  Designate someone to know the details of the office lease, the leases for the office equipment and any and all such agreements.  Track renewal terms.   On at least a quarterly basis, review the list of contracts and determine how to handle any upcoming renewals.

2.  Exercise care in selecting retirement plan investment managers.  While many CPA firms do a great job in managing retirement plan assets, we advise practices to keep the practice accounting functions and the plan investment management separate.  Use an independent accountant who is paid for accounting services and not compensated for the sale of financial products to you. 

3.  Know exactly what you are paying to any and all advisors.  While many clients dislike the bills from hourly or flat fee advisors, at least it is clear how much you are paying.  Avoid giving into the psychology of feeling like you didn’t have to pay anything because a commission came off the top and you didn’t have to write a check. There is a reason for the shift to administrative and investment expenses being paid from  plans and/or off the top.  You pay more but you feel like you paid less. Always be clear about cost.   If you are writing a check for health insurance premiums, you are paying a commission.  Do you know how much it is? 

4.  Protect yourself from medical malpractice lawsuits.  Review your malpractice insurance for the best possible coverage.  Make yourself as judgment proof as possible.  Real estate, furniture and equipment should not be owned by the medical practice.  Use another entity to own valuable assets.  The assets can then be leased to the medical practice, making them less accessible to a malpractice claimant.  Each physician should engage in personal creditor protection planning.  If you are sued for medical malpractice, keep in mind that the attorney representing you works for and is paid by your insurance carrier.  Most of the time, that works well but there are circumstances where you should engage an independent lawyer.  At a minimum, keep the practice’s business lawyer in the loop on any medical malpractice suits.   Of course, the best protection is to adopt top notch practices and policies for risk management so that suits are avoided in the first place.

5.  Maintain and regularly review insurance coverage for the practice.  We often find clients do not have sufficient protection for such things as employee theft or unowned automobile liability.  Review and consider all optional coverages. 

6.  Adopt policies and procedures that ensure compliance with all applicable medical laws.  While it is likely not necessary to engage in an exorbitantly expensive compliance audit, periodic reviews of billing procedures, patient file documentation and third party financial arrangements should be conducted by a trusted advisor with appropriate skills and experience.   Consultants should be hired through your lawyer so that any reports provided stay as confidential as possible pursuant to the attorney client privilege.

7.  Review the practice compensation plan.  Be certain that the plan complies with Stark and all applicable regulatory rules.

8.  Review your malpractice insurance coverage and be certain that you are maintaining adequate limits.

9.  Review the structure of your retirement plan.  Physician plans can readily be designed in a way that avoids most testing requirements and reduces administration costs while allowing physicians to maximize their contributions to the plan.

10.  Review and update the agreements between the partners.  Unfinished or archaic agreements are a recipe for disaster when one of the group members experiences a life changing event.  What happens when a physician becomes disabled? Dies? Becomes a drug addict? Has an affair with a nurse?

 

© 2009 Parsonage Vandenack Williams LLC

  For more information, contact info@pvwlaw.com